UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION I

May 12, 2015

BY HAND

5 POST OFFICE SQUARE, SUITE 100 BOSTON, MA 02109-3912

Wanda Santiago, Regional Hearing Clerk U.S. Environmental Protection Agency Region 1 (ORA 18-1) 5 Post Office Square, Suite 100 Boston, MA 02109-3912

RECEIVED

MAY 1 2 2015 EPAORC \JJ)

Office of Regional Hearing Clerk

Re: In the matter o(Borrego Solar Systems, Inc., Docket No. CWA-01-2015-0047

Dear Ms. Santiago:

Enclosed for filing are the following original documents, and one copy of each, relating to the above-referenced matter:

1. Administrative Complaint and Notice of Opportunity for Hearing; and

2. Certificate of Service.

Thank you for your attention to this matter.

Sincerely,

~ dams

Enclosures

cc: Aaron Hall, President, Borrego Solar Systems, Inc. , 5005 Texas St. , Suite 400, San Diego, CA 921 08 David Albrecht, Borrego Solar Systems, Inc., 1115 Westford St. , Lowell, MA 01851 Andrew Spejewski, EPA

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

) In the Matter of: )

) Borrego Solar Systems, Inc. , )

) )

Respondent )

Docket No. CWA-01-2015-0047

ADMINISTRATIVE COMPLAINT Proposing to Assess a Civil Penalty Under Section 309(g) of the Clean Water Act

STATUTORY AND REGULATORY AUTHORITY

1. This Administrative Complaint ("Complaint") is issued under the authority vested in

the U.S. Environmental Protection Agency ("EPA") by Section 309(g) of the Clean

Water Act ("the Act"), 33 U.S.C. § 1319(g), and in accordance with the "Consolidated

Rules of Practice Governing the Administrative Assessment of Civil Penalties and the

Revocation/Termination or Suspension of Permits," 40 C.F.R. §§ 22.1-22.52 ("the

Consolidated Rules of Practice").

2. Pursuant to Section 309(g) ofthe Act, 33 U.S.C. § 1319(g), and in accordance with the

Consolidated Rules of Practice, Complainant hereby provides notice of a proposal to

assess a civil penalty against Borrego Solar Systems, Inc. ("Respondent") for failing to

comply with the NPDES General Permit for Storm Water Discharges from

Construction Activities ("CGP") in violation of Section 301(a) ofthe Act, 33 U.S.C. §

1311(a).

3. Section 301(a) ofthe Act, 33 U.S.C. § 1311(a), prohibits the discharge of pollutants by

any person into the navigable waters of the United States except in compliance with,

1

RECEIVED

MAY 12 2015 EPAORC (}JS

Office of Regional Hearing Clerk

among other things, a NPDES permit issued under Section 402 of the Act, 33 U.S.C.

§ 1342.

4. Section 502(12) of the Act, 33 U.S.C. § 1362(12), defines "discharge of pollutants" to

include "any addition of any pollutant to navigable waters from any point source."

5. Section 502(6) of the Act, 33 U.S.C. § 1362(6), defines "pollutant" to include, among

other things, dredged spoil, garbage, rock, sand, and cellar dirt.

6. Section 502(7) ofthe Act, 33 U.S.C. § 1362(7), defines "navigable waters" as "waters

of the United States, including the territorial seas."

7. Section 502(14) of the Act, 33 U.S.C. § 1362(14), defines a "point source" as "any

discernible, confined and discrete conveyance ... from which pollutants are or may be

discharged."

8. Section 502(5) ofthe Act, 33 U.S.C. § 1362(5), defines "person" to include "an

individual, corporation, partnership, [or] association."

9. Section 402(p)(2)(B) of the Act, 33 U.S.C. § 1342(p)(2)(B), requires any storm water

discharge associated with "industrial activity" to be authorized by a NPDES permit.

10. Section 308(a) ofthe Act, 33 U.S.C. § 1318(a), authorizes EPA to require the owner or

operator of any p·oint source to provide such information as EPA may reasonably

require to carry out the objectives of the Act, including the issuance ofNPDES permits

pursuant to Section 402 of the Act, 33 U.S.C. § 1342.

11. Pursuant to Sections 308 and 402 of the Act, EPA promulgated storm water discharge

regulations at 40 C.F .R. § 122.26. Section 122.26( c) requires dischargers of storm

water associated with "industrial activity" to apply for an individual permit or seek

coverage under a promulgated storm water general permit. Section 122.26(b)(14)(x)

2

defines industrial activity to include construction activity including the clearing,

grading, and excavation of land. Section 122.26(b)(13) defines storm water to include

storm water runoff, snow melt runoff, and surface runoff and drainage.

12. In February 2012, EPA reissued the NPDES General Permit for Stormwater

Discharges from Construction Activities, 77 Fed. Reg. 12,286 (Feb. 29, 2012) ("2012

CGP"). The 2012 CGP was issued for a term of 5 years and became effective on

February 16, 2012. The 2012 CGP authorizes, subject to conditions contained therein,

the discharge of pollutants in storm water runoff associated with construction activities,

including construction activities within the Commonwealth of Massachusetts.

13. To obtain coverage under the 2012 CGP, Part 1 requires "operators" to submit a notice

of intent ("NOI"). The 2012 CGP, Appendix A, defines "operator" as "any party

associated with a construction project" that either "has operational control over

construction plans and specifications, including the ability to make modifications to

those plans and specifications" or "has day-to-day operational control of those activities

at a project that are necessary to ensure compliance with the permit conditions (e.g. ,

they are authorized to direct workers at a site to carry out activities required by the

permit)."

14. Part 1.4.2 of the 2012 CGP provides that a NOI must be submitted at least 14 calendar

days prior to commencing earth-disturbing activities.

15. Part 7.2 of the 2012 CGP requires an operator to develop a storm water pollution

prevention plan ("SWPPP") describing the nature of construction activities and

describing all stormwater control measures that are or will be installed and maintained

at the construction project covered by the permit. Part 7.2.12 ofthe 2012 CGP requires

3

that the SWPP describe the procedures for maintaining stormwater control measures,

conducting site inspections, and taking corrective actions.

16. Parts 2 and 3 ofthe 2012 CGP set forth technology-based and water quality-based

effluent limits. These limits include erosion and sediment controls, off-site sediment

track-out, and erosion control and stabilization. Sediment controls include the use of

sediment basins, silt fences, vegetative buffer strips or equivalent sediment controls.

17. Part 2.1 of the 2012 CGP requires that an operator "must design, install, and maintain

erosion and sediment controls that minimize the discharge of pollutants from earth­

disturbing activities."

18. Part 2.1.1.3 ofthe 2012 CGP requires that, "by the time earth-disturbing activities in

any given portion of [a] site have begun," an operator must "install and make

operational any downgradient controls (e.g. buffers or equivalent sediment controls,

perimeter controls, exit point controls, storm drain inlet protection) that control

discharges from the initial site clearing, grading, excavating and other land-disturbing

activities."

19. Part 2.1.1.3 b. ofthe 2012 CGP provides that an operator "must install all stormwater

controls in accordance with good engineering practices, including applicable design

specifications."

20. Part 2.1.1.4 of the 2012 CGP requires an operator to "ensure that all erosion and

sediment controls required in this Part remain in effective operating condition during

permit coverage and are protected from activities that would reduce their

effectiveness." When problems are found, an operator "must make the necessary

repairs or modifications in accordance with the following schedule: Initiate work to fix

4

the problem completely after discovering the problem, and complete such work by the

close of the next work day, ifthe problem does not require significant repair or

replacement, or if the problem can be corrected through routine maintenance."

21. Part 2.1.2.1 ofthe 2012 CGP states that an operator "must ensure that any discharges to

surface waters through the area between the disturbed portions of the property and any

surface waters located within 50 feet of [the] site are treated by an area of undisturbed

natural buffer and/or additional erosion and sediment controls in order to achieve a

reduction in sediment load equivalent to that achieved by a 50-foot natural buffer."

22. Part 2.1.2.2 of the 2012 CGP states that an operator "must install sediment controls

along those perimeter areas of your site that will receive storm water from earth­

disturbing activities," and that an operator must "remove sediment before it has

accumulated to one-half of the above-ground height of any perimeter control."

ALLEGATIONS

23 . Respondent Borrego Solar Systems, Inc. is a domestic profit corporation organized

under the laws of California, with a place of doing business at 1115 Westford St. , 2nd

Floor, Lowell, Massachusetts 01851.

24. Respondent is a "person" within the meaning of Section 502(5) ofthe Act, 33 U.S.C.

§ 1362(5).

25. Respondent provides engineering and construction services for the development of

solar power sites. Respondent provided construction services for, and directed the

construction at, three solar power array sites located off Little Rest Road, in Warren,

Massachusetts, namely Midstate 1 (also known as "Midstate A"), Midstate 2 (also

5

known as "Midstate B"), and Midstate 3 (also known as "Midstate C"). Hereinafter,

the sites are identified in this Complaint as the "Midstate 1 Site", the "Midstate 2 Site,"

and the "Midstate 3 Site," and they are identified collectively as the "Sites" or the

"Construction Sites."

26. Respondent submitted Notices oflntent ("NOis") to be covered under the 2012 CGP

for the Midstate 1 Site (Permit No. MAR12AL63), Midstate 2 Site (Permit No.

MAR12AL68) and Midstate 3 Site (Permit No. MAR12AL26), on June 21 , 2013 , June

23 , 2013 , and June 14, 2013 , respectively.

27. Construction activities under the NOI resulted in disturbed areas of approximately

24.75 acres at the Midstate 1 Site; approximately 26.5 acres at the Midstate 2 Site; and

approximately 37.8 acres at the Midstate 3 Site.

28. Respondent commenced construction activities at the Sites under the NOI on about

August 31 , 2013. Construction activities were completed on approximately June 27,

2014. On-site construction included clearing, grading and excavation activities.

29. Respondent had operational control over construction plans and specifications for the

Construction Sites and day-to-day operational control of those activities at the Sites

necessary to ensure compliance with permit conditions. Thus, Respondent is an

"operator" at the Construction Sites within the meaning of the 2012 CGP.

30. When Respondent commenced clearing, grading, and excavating at the Cons.truction

Sites, Respondent engaged in the "commencement of earth-disturbing activities" as

defined in Appendix A ofthe 2012 CGP.

31. The construction at the Construction Sites was an "industrial activity" within the

meaning of 40 C.F.R. § 122.26(b)(14)(x).

6

32. As an "operator" ofthe Construction Sites, once Respondent obtained NPDES permit

coverage for the construction activities at the Construction Sites, Respondent was

required to comply with all requirements and conditions for operation under the Act, its

regulations, and the applicable permit.

33. The Construction Sites are located within the Quaboag River watershed. The Quaboag

River is classified by the Commonwealth of Massachusetts as a Class B water.

34. On January 8, 2014, in response to concerns about impacts to wetlands from runoff at

the Construction Sites, the Conservation Commission for the Town of Warren,

Massachusetts, issued three enforcement orders (File Numbers 318-0208, 318-0207,

and 318-0206), requiring among other things, the stabilization of the Sites and use of

erosion control to prevent sediment from surface runoff into surface waters and buffers

zones, and the cleanup of sedimentation in an intermittent stream at Midstate 3.

35. On May 1, 2014, EPA conducted an inspection at Midstate 1, Midstate 2 and Midstate

3.

36. At Midstate 1, EPA' s inspector observed erosional gullies and runoff from unvegetated

areas, and failures of erosion controls.

37. At Midstate 2, EPA' s inspector observed significant runoff flowing offsite into a pond

and wetlands associated with Tufts Brook; erosional gullies and runoff; failures of

erosion controls; and unstabilized soils. In addition, a stormwater detention basin in the

northeast comer of Midstate 2 had not been built, although the earth-moving and

construction had already commenced, and soils were not stabilized.

38. At Midstate 3, EPA' s inspector observed erosional gullies and runoff; failure of

erosional controls; and unstabilized detention basins, one with turbid water overflowing

7

the basin and depositing sediments into a tributary to Taylor Brook, and another where

turbid water overtopped a basin and entered wetlands adjacent to Taylor Brook..

39. EPA issued a request for information pursuant to Section 308 of the Act to Respondent

on July 3, 2014. Respondent responded to the request on August 28, 2014. In its

response, Respondent stated that although construction plans called for the use of a clay

core for the detention basins at Midstate 3, they had been constructed without clay

cores or other techniques sufficient to prevent break-through or erosion of the walls.

The detention basins in Midstate 3 were reportedly reconstructed in June and July, 2014

utilizing a geocomposite clay liner.

40. In January, 2014, in response to the Town of Warren' s enforcement orders, Respondent

hired an environmental consulting firm, New England Environmental, Inc. ("NEE"), to

monitor and document erosion and sedimentation at the Sites, to document, quantify

and assess impacts to resource areas, a to determine the best approach to restoration and

cleanup, and to oversee restoration and cleanup.

41. In various observations at Midstate 1 on January 11 , 12,, 14 and 15, 2014, NEE

observed: that although best management practices ("BMPs") were in place, Site 1 was

overwhelmed by rain and snow melt; exposed soil at the site contributed to turbid

runoff; several areas of turbid runoff; and that turbid water was flowing through a

temporary basin and swale, several rows of erosion control barrier, and into Taylor

Brook.

42. NEE issued a Wetland Impact Evaluation report for Site B (Midstate 2) on May 21 ,

2014 (revised June 12, 2014 ). The report noted that at least 20 square feet of sediment

had been deposited in an intermittent stream flowing north between Midstate 1 and

8

Midstate 2; and that sediment was deposited in wetlands north, and to the east/

northeast ofMidstate 2. NEE conducted restoration at these locations in June, 2014,

removing approximately 25 cubic yards of material from wetlands at Midstate 2.

43. NEE also issued a Wetland Impact Evaluation for Site C (Midstate 3) on May 21 , 2014

(revised June 12, 2014). The report noted that near detention basin #3 in the southwest

comer ofMidstate 3, erosion control barriers were heavily backfilled with sediment,

and sediment was observed in the wetlands nearby. Similarly, sedimentation was

observed in wetlands near detention basin # 1 in the northeast comer. In addition,

widespread sedimentation, ranging in depth from 3-8 iJ!ches, was observed in an

intermittent stream channel near the entrance to Midstate 3. NEE conducted restoration

at these locations in June and July, 2014, removing approximately 10 cubic yards of

material from wetlands and the intermittent stream at Midstate 3.

44. Storm water at the Construction Sites drains to, and discharges storm water, to Taylor

Brook and its tributaries to the west, and Tufts Brook, including some ponded areas,

and adjacent wetlands to the north.

45 . Taylor Brook flows to Tufts Brook, which flows to Blodgett Mill Brook, and thence to

the Quaboag River, the Chicopee River, the Connecticut River, and Long Island Sound,

a part of the Atlantic Ocean.

46. Taylor Brook, Tufts Brook, its ponded areas and wetlands adjacent to it, Blodgett Mill

Brook, the Quaboag River, the Chicopee River, the Connecticut River, Long Island

Sound and the Atlantic Ocean are all "waters of the United States," as defined at 40

C.F.R. § 122.2, and thereby are "navigable waters," as defined in Section 502(7) of the

Act, 33 U.S.C. § 1362(7).

9

47. Storm water from disturbed areas of the Sites contaminated with sand, dirt, sediment,

suspended solids, residues of construction material, and turbidity has been conveyed

through detention basins, outfalls, ditches, swales, and gullies, to waters of the United

States. The detention basins, outfalls, ditches, swales, and gullies constitute "point

source[s]" within the meaning of Section 502(14) of the Act, 33 U.S.C. § 1362(14).

48. The sand, dirt, sediment, suspended solids, residues of construction material, and

turbidity discharged into waters of the U.S. constitute "pollutant[s]" within the meaning

of Section 502(6) ofthe Act, 33 U.S.C. § 1362(6).

49. The storm water discharges from the Site result in the "discharge of pollutants" as

defined at Section 502(13) ofthe Act, 33 U.S.C. § 1362(12).

COUNT I: FAILURE TO COMPLY WITH THE CONSTRUCTION GENERAL PERMIT

50. Complainant incorporates by reference, as if fully set forth herein, Paragraphs 1

through 49.

51. By failing to install and make operational the stormwater detention basin in the

northeast comer of Midstate 2 before earth-disturbing activities were begun in that

portion of the Mid state 2 Site, Respondent violated Part 2. l .1.3 .a. of the 2012 CGP.

52. By failing to install stormwater detention basins at Midstate 3 in accordance with good

engineering practices, including the design specification calling for a clay core

construction, Respondent was in violation ofPart 2.1.1.3.b. ofthe 2012 CGP.

53. By failing to ensure that discharges to surface waters through the area between the

disturbed portions ofthe Construction Sites and surface waters were treated by an area

of undisturbed natural buffer and/or additional erosion and sediment controls in order to

10

achieve a reduction in sediment load equivalent to that achieved by a 50-foot natural

buffer, Respondent was in violation of Section 2.1.2.1 ofthe 2012 CGP.

54. By failing to install and/or maintain fabric filters , hay bales, and other perimeter

controls at the Construction Sites, resulting in the discharge of between 24 and 35 cubic

yards of sediment into wetlands and other surface waters, Respondent was in violation

of Part 2.1.1.4 ofthe 2012 CGP.

55. By failing to remove sediment at the Construction Sites before it had accumulated to

one-half of the above-ground height of the silt fencing, and by failing to ensure that this

silt fencing remained in effective operating condition during permit coverage and was

protected from activities that would reduce its effectiveness, Respondent was in

violation of Parts 2.1.2.2 and 2.1.1.4 of the 2012 CGP.

56. By discharging storm water associated with industrial activity into waters of the U.S. in

violation of the terms and conditions of a permit issued pursuant to Section 402 of the

Act, 33 U.S.C. § 1342, and by failing to comply with all the conditions in the 2012

CGP, Respondent violated Section 301(a) ofthe Act, 33 U.S.C. § 1311(a) from

approximately August 31 , 2013 through at least May 1, 2014.

PROPOSED ASSESSMENT OF CIVIL PENALTY

57. Pursuant to Section 309(g) ofthe Act, 33 U.S.C. § 1319(g), the Federal Civil Penalties

Inflation Adjustment Act of 1990, 28 U.S.C. § 2461, et seq. , the Debt Collection

Improvement Act of 1996, 31 U.S .C. § 3701 , et seq. , and the rule for Adjustment of

Civil Monetary Penalties for Inflation, 40 C.F.R. §§ 19.1-19.4 (61 Fed. Reg. 69360, 69

(Dec. 31, 1996); 69 Fed. Reg 7121 , 7 (Feb. 13, 2004); 78 Fed. Reg. 66,643 (Nov. 6,

2013)), Respondent is subject to civil penalties of up to sixteen thousand dollars

11

($16,000) per day for each day during which the violation continued up to a maximum

of one hundred and eighty-seven thousand and five hundred dollars ($187 ,500) for each

violation.

58. EPA is seeking a penalty from Respondent of up to $16,000 for each day of violation

for approximately 240 days, up to a maximum of$187,500.

59. In determining the amount of the penalty to be assessed under Section 309(g)(2)(B) of

the Act, 33 U.S.C. § 1319(g)(2)(B), EPA will take into account the statutory factors

listed in Section 309(g)(3) of the Act, 33 U.S.C. § 1319(g)(3). These factors include

the nature, circumstances, extent and gravity of the violations, Respondent's prior

compliance history, the degree of culpability for the cited violations, any economic

benefit or savings accruing to Respondent resulting from the violations, Respondent's

ability to pay the proposed penalty, and such other matters as justice may require.

60. The violations alleged are significant because failure to properly implement or maintain

the BMPs necessary to prevent the discharge of pollutants resulted in discharge of

between 24 and 35 cubic yards of sediment to waters ofthe United States.

NOTICE OF OPPORTUNITY TO REQUEST A HEARING

61. Pursuant to Section 309(g) of the Act, 33 U.S .C. § 1319(g), and 40 C.F.R. § 22.14,

notice is hereby given that Respondent has the right to request a hearing on any

material fact alleged in this Complaint and on the appropriateness of any proposed

penalty. Any such hearing will be conducted in accordance with the Consolidated

Rules of Practice, a copy of which is enclosed. Members of the public, to whom EPA

is obliged to give notice of this proposed action, have a right under Section

12

309(g)(4)(B) ofthe Act, 33 U.S.C. § 1319(g)(4)(B), to comment on any proposed

penalty and to be heard and to present evidence at the hearing.

62. Respondent's Answer must comply with 40 C.P.R.§ 22.15 and must be filed with the

Regional Hearing Clerk at the following address within thirty (30) days of receipt ofthe

Complaint:

Regional Hearing Clerk U.S. Environmental Protection Agency

Region I 5 Post Office Square, Suite 100

Mail Code ORA18-1 Boston, Massachusetts 021 09-3 912

63 . To be entitled to a hearing, Respondent must include a request for a hearing in its

Answer to the Complaint.

64. Pursuant to Section 22.5(c)(4) ofthe enclosed Consolidated Rules of Practice, the

following individual is authorized to receive service on behalf of EPA:

Margery Adams, Senior Enforcement Counsel U.S. Environmental Protection Agency

Region I 5 Post Office Square, Suite 100

Mail Code OES04-2 Boston, Massachusetts 021 09-3 912

Telephone: 617-918-1733

65. If Respondent does not file a timely Answer to this Complaint, Respondent may be

found in default. Default constitutes, for purposes of this action only, an admission ofl

facts alleged in the Complaint and a waiver of Respondent' s right to a hearing on

factual allegations contained therein.

66. The filing and service of documents, other than the complaint, rulings, orders, and

decisions, in all cases before the Region 1 Regional Judicial Officer governed by the

13

Consolidated Rules of Practice may be filed and served by email, consistent with the

"Standing Order Authorizing Filing and Service by E-mail in Proceedings Before the

Region 1 Regional Judicial Officer," a copy of which has been provided with the

Complaint.

CONTINUED COMPLIANCE OBLIGATION

67. Neither assessment nor payment of an administrative penalty shall affect Respondent' s

continuing obligation to comply with the Act and implementing regulations and other

applicable federal , state and local laws.

Date: 6:5/0~/~ I

14

Susan Studlien, Director Office of Environmental Stewardship U.S. Environmental Protection Region 1 5 Post Office Square, Suite 100, OES04-5 Boston, MA 02109

AUTHENTit.:ATED9 U~. COVERNMENT

IN FORM ATION

CPO

§21.13

conforms to the requirements of this section. Any such approval shall be after sufficient notice has been pro­vided to the Regional Director of SBA.

(c) If the Regional Administrator dis­approves the application, he shall no­tify the State, in writing, of any defi­ciency in its application. A State may resubmit an amended application at any later time.

(d) Upon approval of a State submis­sion, EPA will suspend all review of ap­plications and issuance of statements for small businesses in that State, pending transferral. Provided, however, That in the event of a State conflict of interest as identified in § 21.12(a)(4) of this section, EPA shall review the ap­plication and issue the statement.

(e) Any applications shall, if received by an EPA Regional Office, be for­warded promptly to the appropriate State for action pursuant to section 7(g)(2) of the Small Business Act and these regulations.

(f)(l) EPA will generally not review or approve individual statements issued by a State. However, SBA, upon receipt and review of a State approved statement may request the Regional Administrator of EPA to review the statement. The Regional Adminis­trator, upon such request can further approve or disapprove the State issued statement, in accordance with the re­quirements of §21.5.

(2) The Regional Administrator will periodically review State program per­formance. In the event of State pro­gram deficiencies the Regional Admin­istrator will notify the State of such deficiencies.

(3) During that period that any State 's program is classified as defi­cient, statements issued by a State shall also be sent to the Regional Ad­ministrator for review. ·The Regional Administrator shall notify the State, the applicant,. and the SBA of any de­termination subsequently made, in ac­cordance with §21.5, on any s.uch state­ment.

(i) If within 60 days after notice of such deficiencies has been provided, the State has not taken corrective ef­forts , and if the deficiencies signifi­cantly affect the conduct of the pro­gram, the Regional Administrator, after sufficient notice has been pro-

40 CFR Ch. I (7-1-14 Edition)

vided to the Regional Director of SBA, shall withdraw the approval of the State program.

(ii) Any State whose program is with­drawn and whose deficiencies have been corrected may later reapply as pro­vided in §21.12(a).

(g) Funds appropriated under section 106 of the Act may be utilized by a State agency authorized to receive such funds in conducting this program.

§ 21.13 Effect of certification upon au­thority to enforce applicable stand· ards.

The certification by EPA or a State for SBA Loan purposes in no way con­stitutes a determination by EPA or the State that the facilities certified (a) will be constructed within the time specified by an applicable standard or (b) will be constructed and installed in accordance with the plans and speci­fications submitted in the application, will be operated and maintained prop­erly, or will be applied to process wastes which are the same as described in the application. The certification in no way constitutes a waiver by EPA or a State of its authority to take appro­priate enforcement action against the owner or operator of such facilities for violations of an applicable standard.

PART 22-cONSOLIDATED RULES OF PRACTICE GOVERNING THE ADMINISTRATIVE ASSESSMENT OF CIVIL PENALTIES AND THE REV­OCATION/TERMINATION OR SUS­PENSION OF PERMITS

Subpart A-General

Sec. 22.1 Scope of this part. 22.2 Use of number and gender. 22.3 Definitions. 22.4 Powers and duties of the Environ­

mental Appeals Board. Regional Judicial Officer and Presiding Officer; disquali­fication, withdrawal, and reassignment.

22.5 Filing, service, and form of all filed documents; business confidentiality claims.

22.6 Filing and service of rulings, orders and decisions.

22.7 Computation and extension of time. 22.8 Ex parte discussion of proceeding. 22.9 Examination of documents filed .

240

Environmental Protection Agency

Subpart 8-Parties and Appearances

22.10 Appearances. 22.11 Intervention and non-party briefs. 22.12 Consolidation and severance.

Subpart C-Prehearing Procedures

22.13 Commencement of a proceeding. 22.14 Complaint. 22.15 Answer to the complaint. 22.16 Motions. 22.17 Default. 22.18 Quick resolution; settlement; alter­

native dispute resolution. 22.19 Prehearing information exchange; pre­

hearing conference; other discovery. 22.20 Accelerated decision; decision to dis­

miss.

Subpart D-Hearing Procedures

22.21 Assignment of Presiding Officer; scheduling the hearing.

22.22 Evidence. 22.23 Objections and offers of proof. 22.24 Burden of presentation; burden of per­

suasion; preponderance of the evidence standard.

22.25 Filing the transcript. 22.26 Proposed findings, conclusions, and

order.

Subpart E-lnitial Decision and Motion to Reopen a Hearing

22.27 Initial decision. 22.28 Motion to reopen a hearing.

Subpart F-Appeals and Administrative Review

22.29 Appeal from or review of interlocutory orders or rulings.

22.30 Appeal from or review of initial deci­sion.

Subpart G-Final Order

22.31 Final order. 22.32 Motion to reconsider a final order.

Subpart H-Supplemental Rules

22.33 [Reserved] 22.34 Supplemental rules governing the ad­

ministrative assessment of civil pen­alties under the Clean Air Act.

22.35 Supplemental rules governing the ad­ministrative assessment of civil pen­alties under the Federal Insecticide, Fun­gicide, and Roden ticide Act.

22.36 [Reserved] 22.37 Supplemental rules governing admin­

istrative proceedings under the Solid Waste Disposal Act.

22.38 Supplemental rules of practice gov­erning the administrative assessment of

§22.1

civil penalties under the Clean Water Act.

22.39 Supplemental rules governing the ad­ministrative assessment of civil pen­alties under section 109 of the Com­prehensive Environmental Response, Compensation, and Liability Act of 1980, as amended.

22.40 [Reserved] 22.41 Supplemental rules governing the ad­

ministrative assessment of civil pen­alties under Title II of the Toxic Sub­stance Control Act, enacted as section 2 of the Asbestos Hazard Emergency Re­sponse Act (AHERA).

22.42 Supplemental rules governing the ad­ministrative assessment of civil pen­alties for violations of compliance orders issued to owners or operators of public water systems under part B of the Safe Drinking Water Act.

22.43 Supplemental rules governing the ad­ministrative assessment of civil pen­alties against a federal agency under the Safe Drinking Water Act.

22.44 Supplemental rules of practice gov­erning the termination of permits under section 402(a) of the Clean Water Act or under section 3008(a)(3) of the Resource Conservation and Recovery Act.

22.45 Supplemental rules governing public notice and comment in proceedings under sections 309(g) and 311(b)(6)(B)(ii) of the Clean Water Act and section 1423(c) of the Safe Drinking Water Act.

22.46-22.49 [Reserved]

Subpart !-Administrative Proceedings Not Governed by Section 554 of the Ad­ministrative Procedure Act

22.50 Scope of this subpart. 22.51 Presiding Officer. 22.52 Information exchange and discovery.

AUTHORITY: 7 U.S.C. 136(1); 15 U.S.C. 2615; 33 U.S.C. 1319, 1342, 1361. 1415 and 1418; 42 U.S.C. 300g- 3(g), 6912, 6925, 6928, 6991e and 6992d; 42 U.S.C . 7413(d}, 7524(c), 7545(d), 7547, 7601 and 7607(a), 9609, and 11045.

SOURCE: 64 FR 40176, July 23, 1999, unless otherwise noted.

Subpart A-General

§ 22.1 Scope ofthis part.

(a) These Consolidated Rules of Prac­tice govern all administrative adju­dicatory proceedings for:

(1) The assessment of any adminis­trative civil penalty under section 14(a) of the Federal Insecticide, Fungicide, and Rodenticide Act as a m ended (7 U.S.C. 136Z(a));

241

§22.2

(2) The assessment of any adminis­trative civil penalty under sections 113(d), 205(c), 211(d) and 213(d) of the Clean Air Act, as amended (42 U.S.C. 7413(d), 7524(c), 7545(d) and 7547(d));

(3) The assessment of any adminis­trative civil penalty or for the revoca­tion or suspension of any permit under section 105(a) and (f) of the Marine Pro­tection. Research. and Sanctuaries Act as amended (33 U.S.C. 1415(a) and (f));

(4) The issuance of a compliance order or the issuance of a corrective ac­tion order. the termination of a permit pursuant to section 3008(a)(3), the sus­pension or revocation of authority to operate pursuant to section 3005(e), or the assessment of any civil penalty under sections 3008, 9006, and 11005 of the Solid Waste Disposal Act, as amended (42 U.S.C. 6925(d), 6925(e), 6928 , 6991e , and 6992d)), except as provided in part 24 of this chapter;

(5) The assessment of any adminis­trative civil penalty under sections 16(a) and 207 of the Toxic Substances Control Act (15 U.S .C. 2615(a) and 2647);

(6) The assessment of any Class II penalty under sections 309(g) and 311(b)(6) , or termination of any permit issued pursuant to section 402(a) of the Clean Water Act, as amended (33 U.S .C. 1319(g), 1321(b)(6) , and 1342(a));

(7) The assessment of any adminis­trative civil penalty under section 109 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. 9609);

(8) The assessment of any adminis­trative civil penalty under section 325 of the Emergency Planning and Com­munity Right-To-Know Act of 1986 ("EPCRA") (42 U.S.C. 11045);

(9) The assessment of any adminis­trative civil penalty under sections 1414(g)(3)(B), 1423(c). and 1447(b) of the Safe Drinking Water Act as amended (42 U.S .C. 300g-3(g)(3)(B), 300h-2(c), and 300j-6(b)), or the issuance of any order requiring both compliance and the as­sessment of an administrative civil penalty under section 1423(c);

(10) The assessment of any adminis­trative civil penalty or the issuance of any order requiring compliance under Section 5 of the Mercury-Containing and Rechargeable Battery Management Act (42 U.S.C. 14304).

40 CFR Ch. I (7-1-14 Edition)

(b) The supplemental rules set forth in subparts H and I of this part estab­lish special procedures for proceedings identified in paragraph (a) of this sec­tion where the Act allows or requires procedures different from the proce­dures in subparts A through G of this part. Where inconsistencies exist be­tween subparts A through G of this part and subpart H or I of this part, subparts H or I of this part shall apply.

(c) Questions arising at any stage of the proceeding which are not addressed in these Consolidated Rules of Practice shall be resolved at the discretion of the Administrator, Environmental Ap­peals Board, Regional Administrator. or Presiding Officer, as provided for in these Consolidated Rules of Practice.

[64 FR 40176. July 23, 1999, as amended at 65 FR 30904. May 15, 2000)

§ 22.2 Use of number and gender. As used in these Consolidated Rules

of Practice, words in the singular also include the plural and words in the masculine gender also include the feminine. and vice versa, as the case may require.

§ 22.3 Definitions. (a) The following definitions apply to

these Consolidated Rules of Practice: Act means the particular statute au­

thorizing the proceeding at issue. Administrative Law Judge means an

Administrative Law Judge appointed under 5 U.S .C. 3105.

Administrator means the Adminis­trator of the U.S. Environmental Pro­tection Agency or his delegate.

Agency means the United States En­vironmental Protection Agency.

Business confidentiality claim means a confidentiality claim as defined in 40 CFR 2.201(h).

Clerk o[ the Board means the Clerk of the Environmental Appeals Board, Mail Code 1103B, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave ., NW., Washington. DC 20460.

Commenter means any person (other than a party) or representative of such person who timely:

(1) Submits in wri ting to the Re­gional Hearing Clerk that he is pro­viding or intends to provide comments on the proposed assessment of a pen­alty pursuant to sections 309(g)(4) and

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311(b)(6)(C) of the Clean Water Act or section 1423(c) of the Safe Drinking Water Act, whichever applies, and in­tends to participate in the proceeding; and

(2) Provides the Regional Hearing Clerk with a return address.

Complainant means any person au­thorized to issue a complaint in accord­ance with §§22.13 and 22.14 on behalf of the Agency to persons alleged to be in violation of the Act. The complainant shall not be a member of the Environ­mental Appeals Board, the Regional Judicial Officer or any other person who will participate or advise in the adjudication.

Consolidated Rules of Practice means the regulations in this part.

Environmental Appeals Board means the Board within the Agency described in 40 CFR 1.25.

Final order means: (1) An order issued by the Environ­

mental Appeals Board or the Adminis­trator after an appeal of an initial deci­sion , accelerated · decision, decision to dismiss, or default order, disposing of the ma tter in controversy between the parties;

(2) An initial decision which becomes a final order under §22.27(c); or

(3) A final order issued in accordance with §22.18.

Hearing means an evidentiary hear­ing on the record, open to the public (to the extent consistent with § 22.22(a)(2)), conducted as part of a pro­ceeding under these Consolidated Rules of Practice.

Hearing Clerk means the Hearing Clerk, Mail Code 1900, U.S . Environ­mental Protection Agency , 1200 Penn­sylvania Ave., NW. , Washington, DC 20460.

Initial decision means the decision issued by the Presiding Officer pursu­ant to §§22.17(c), 22.20(b) or 22.27 resolv­ing all outstanding issues in the pro­ceeding.

Party means any person that partici­pates in a proceeding as complainant, respondent, or intervenor.

Permit action means the revocation, suspension or termination of all or part of a permit issued under section 102 of the Marine Protection, Research, and Sanctuaries Act (33 U.S.C. 1412) or ter­mination under section 402(a) of the

§22.3

Clean Water Act (33 U.S.C. 1342(a)) or section 3005(d) of the Solid Waste Dis­posal Act (42 U.S.C. 6925(d)).

Person includes any individual, part­nership, association , corporation, and any trustee , assignee, receiver or legal successor thereof; any organized group of persons whether incorporated or not; and any offi.cer, employee, agent, de­partment, agency or instrumentality of the Federal Government, of any State or local unit of government, or of any foreign government.

Presiding Officer means an individual who presides in an administrative adju­dication until an initial decision be­comes final or is appealed. The Pre­siding Officer shall be an Administra­tive Law Judge, except where §§ 22.4(b), 22.16(c) or 22.51 allo~ a Regional Judi­cial Officer to serve as Presiding Offi­cer.

Proceeding means the entirety of a single administrative adjudication, from the filing of the complaint through the issuance of a final order, including any action on a motion tore­consider under §22.32.

Regional Administrator means, for a case initiated in an EPA Regional Of­fice, the Regional Administrator for that Region or any officer or employee thereof to whom his authority is duly delegated.

Regional Hearing Clerk means an indi­vidual duly authorized to serve as hear­ing clerk for a given region, who shall be neutral in every proceeding. Cor­respondence with the Regional Hearing Clerk shall be addressed to the Re­gional Hearing Clerk at the address specified in the complaint. For a case initiated at EPA Headquarters, the term Regional Hearing Clerk means the Hearing Clerk.

Regional Judicial Officer means a per­son designated by the Regional Admin­istrator under §22.4(b).

Respondent means any person against whom the complaint states a claim for relief.

(b) Terms defined in the Act and not defined in these Consolidated Rules of Practice are used consistent with the meanings given in the Act.

[64 FR 40176, July 23 , 1999, as amended at 65 FR 30904, May 15, 2000]

243

§22.4

§ 22.4 Powers and duties of the Envi­ronmental Appeals Board, Regional Judicial Officer and Presiding Offi­cer; disqualification, withdrawal, and reassignment.

(a) Environmental Appeals Board. (1) The Environmental Appeals Board rules on appeals from the initial deci­sions, rulings and orders of a Presiding Officer in proceedings under these Con­solidated Rules of Practice; acts as Presiding Officer until the respondent files an answer in proceedings under these Consolidated Rules of Practice commenced at EPA Headquarters; and approves settlement of proceedings under these Consolidated Rules of Practice commenced at EPA Head­quarters. The Environmental Appeals Board may refer any case or motion to the Administrator when the Environ­mental Appeals Board, in its discre­tion. deems it appropriate to do so. When an appeal or motion is referred to the Administrator by the Environ­mental Appeals Board, all parties shall be so notified and references to the En­vironmental Appeals Board in these Consolidated Rules of Practice shall be interpreted as referring to the Admin­istrator. If a case or motion is referred to the Administrator by the Environ­mental Appeals Board, the Adminis­trator may consult with any EPA em­ployee concerning the matter, provided such consultation does not violate §22.8. Motions directed to the Adminis­trator shall not be considered except for motions for disqualification pursu­ant to paragraph (d) of this section, or motions filed in matters that the Envi­ronmental Appeals Board has referred to the Administrator.

(2) In exercising its duties and re­sponsibilities under these Consolidated Rules of Practice, the Environmental Appeals Board may do all acts and take all measures as are necessary for the efficient, fair and impartial adjudica­tion of issues arising in a proceeding, including imposing procedural sanc­tions against a party who without ade­quate justification fails or refuses to comply with these Consolidated Rules of Practice or with an order of the En­vironmental Appeals Board. Such sanc­tions may include drawing adverse in­ferences against a party, striking a party's pleadings or other submissions

40 CFR Ch. I (7-1-14 Edition)

from the record, and denying any or all relief sought by the party in the pro­ceeding.

(b) Regional Judicial Officer. Each Re­gional Administrator shall delegate to one or more Regional Judicial Officers authority to act as Presiding Officer in proceedings under subpart I of this part, and to act as Presiding Officer until the respondent files an answer in proceedings under these Consolidated Rules of Practice to which subpart I of this part does not apply. The Regional Administrator may also delegate to one or more Regional Judicial Officers the authority to approve settlement of proceedings pursuant to §22.18(b)(3). These delegations will not prevent a Regional Judicial Officer from refer­ring any motion or case to the Re­gional Administrator. A Regional Judi­cial Officer shall be an attorney who is a permanent or temporary employee of the Agency or another Federal agency and who may perform other duties within the Agency. A Regional Judicial Officer shall not have performed pros­ecutorial or investigative functions in connection with any case in which he serves as a Regional Judicial Officer. A Regional Judicial Officer shall not knowingly preside over a case involv­ing any party concerning whom the Re­gional Judicial Officer performed any functions of prosecution or investiga­tion within the 2 years preceding the commencement of the case. A Regional Judicial Officer shall not prosecute en­forcement cases and shall not be super­vised by any person who supervises the prosecution of enforcement cases, but may be supervised by the Regional Counsel.

(c) Presiding Officer. The Presiding Of­ficer shall conduct a fair and impartial proceeding, assure that the facts are fully elicited, adjudicate all issues, and avoid delay. The Presiding Officer may:

(1) Conduct administrative hearings under these Consolidated Rules of Practice;

(2) Rule upon motions, requests, and offers of proof, and issue all necessary orders;

(3) Administer oaths and affirmations and take affidavits;

(4) Examine witnesses and receive documentary or other evidence:

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(5) Order a party, or an officer or agent thereof, to produce testimony, document s, or other non-privileged evi­dence , and failing the production there­of without good cause being shown, draw adverse inferences against that party;

(6) Admit or exclude evidence; (7) Hear and decide questions of facts,

law, or discretion; (8) Require parties to attend con­

ferences for the settlement or sim­plification of the issues , or the expedi­tion of the proceedings;

(9) Issue subpoenas authorized by the Act; and ·

(10) Do all other acts and take all measures necessary for the mainte­nance of order and for the efficient, fair and impartial adjudication of issues arising in proceedings governed by these Consolidated Rules of Practice.

(d) Disqualification, withdrawal and re­assignment. (1) The Administrator, the Regional Administrator, the members of the Environmental Appeals Board, the Regional Judicial Officer, or the Administrative Law Judge may not perform functions provided for in these Consolidated Rules of Practice regard­ing any matter in which they have a fi­nancial interest or have any relation­ship with a party or with the subject matter which would make it inappro­priate for them to act. Any ·party may at any time by motion to the Adminis­trator, Regional Administrator, a member of the Environmental Appeals Board, the Regional Judicial Officer or the Administrative Law Judge request that he or she disqualify himself or herself from the proceeding. If such a motion to disqualify the Regional Ad­ministrator, Regional Judicial Officer or Administrative Law Judge is denied, a party may appeal that ruling to the Environmental Appeals Board. If a mo­tion to disqualify a member of the En­vironmental Appeals Board is denied, a party may appeal that ruling to the Administrator. There shall be no inter­locutory appeal of the ruling on a mo­tion for disqualification. The Adminis­trator, the Regional Administrator, a member of the Environmental Appeals Board, the Regional Judicial Officer, or the Administrative Law Judge may at any time withdraw from any pro­ceeding in which he deems himself dis-

§22.5

qualified or unable to act for any rea­son.

(2) If the Administrator, the Regional Administrator, the Regional Judicial Officer, or the Administrative Law Judge is disqualified or withdraws from the proceeding, a qualified individual who has none of the infirmities listed in paragraph (d)(1) of this section shall be assigned as a replacement. The Ad­ministrator shall assign a replacement for a Regional Administrator who withdraws or is disqualified. Should the Administrator withdraw or be dis­qualified, the Regional Administrator from the Region where the case origi­nated shall replace the Administrator. If that Regional Administrator would be disqualified, the Administrator shall assign a Regional Administrator from another Region to replace the Adminis­trator. The Regional Administrator shall assign a new Regional Judicial Officer if the original Regional Judicial Officer withdraws or is disqualified . The Chief Administrative Law Judge shall assign a new Administrative Law Judge if the original Administrative Law Judge withdraws or is disqualified.

(3) The Chief Administrative Law Judge, at any stage in the proceeding, may reassign the case to an Adminis­trative Law Judge other than the one originally assigned in the event of the unavailability of the Administrative Law Judge or where reassignment will result in efficiency in the scheduling of hearings and would not prejudice the parties.

§ 22.5 Filing, service, and form of all filed documents; business confiden· tiality claims.

(a) Filing of documents. (1) The origi­nal and one copy of each document in­tended to be part of the record shall be filed with the Regional Hearing Clerk when the proceeding is before the Pre­siding Officer, or filed with the Clerk of the Board when the proceeding is be­fore the Environmental Appeals Board. A document is filed when it is received by the appropriate Clerk. Documents filed in proceedings before the Environ­mental Appeals Board shall either be sent by U.S . mail (except by U.S. Ex­press Mail) to the official mailing ad­dress of the Clerk of the Board set forth at § 22.3 or delivered by hand or

245

§22.5

courier (including deliveries by U.S. Postal Express or by a commercial de­livery service) to Suite 600, 1341 G Street, NW. , Washington, DC 20005. The Presiding Officer or the Environmental Appeals Board may by order authorize facsimile or electronic filing . subject to any appropriate conditions and limi­tations.

(2) When the Presiding Officer cor­responds directly with the parties, the original of the correspondence shall be filed with the Regional Hearing Clerk. Parties who correspond directly with the Presiding Officer shall file a copy of the correspondence with the Re­gional Hearing Clerk.

(3) A certificate of service shall ac­company each document filed or served in the proceeding.

(b) Service of documents. A copy of each document filed in the proceeding shall be served on the Presiding Officer or the Environmental Appeals Board, and on each party.

(1) Service of complaint. (i) Complain­ant shall serve on respondent, or a rep­resentative authorized to receive serv­ice on respondent's behalf, a copy of the signed original of the complaint, together with a copy of these Consoli­dated Rules of Practice. Service shall be made personally, by certified mail with return receipt requested, or by any reliable commercial delivery serv­ice that provides written verification of delivery.

(ii)(A) Where respondent is a domes­tic or foreign corporation, a partner­ship, or an unincorporated association which is subject to suit under a com­mon name. complainant shall serve an officer, partner, a managing or general agent, or any other person authorized by appointment or by Federal or State law to receive service of process.

(B) Where respondent is an agency of the United States complainant shall serve that agency as provided by that agency's regulations, or in the absence of controlling regulation, as otherwise permitted by law. Complainant should also provide a copy of the complaint to the senior executive official having re­sponsibility for the overall operations of the geographical unit where the al­leged violations arose. If the agency is a corporation, the complaint shall be

40 CFR Ch. I (7-1-14 Edition)

served as prescribed in paragraph (b)(1)(ii)(A) of this section.

(C) Where respondent is a State or local unit of government, agency, de­partment, corporation or other instru­mentality, complainant shall serve the chief executive officer thereof, or as otherwise permitted by law. Where re­spondent is a State or local officer. complainant shall serve such officer.

(i ii) Proof of service of the complaint shall be made by affidavit of the person making personal service, or by prop­erly executed recj;lipt. Such proof of service shall be filed with the Regional Hearing Clerk immediately upon com­pletion of service.

(2) Service of filed documents other than the complaint , rulings, orders , and deci­sions. All filed documents other than the complaint, rulings, orders, and de­cisions shall be served personally, by first class mail (including certified mail , return receipt requested, Over­night Express and Priority Mail) , or by any reliable commercial delivery serv­ice. The Presiding Officer or the Envi­ronmental Appeals Board may by order authorize facsimile or electronic serv­ice, subject to any appropriate condi­tions and limitations.

(c) Form of documents . (1) Except as provided in this section, or by order of the Presiding Officer or of the Environ­mental Appeals Board there are no spe­cific requirements as to the form of documents.

(2) The first page of every filed docu­ment shall contain a caption identi­fying the respondent and the docket number. All legal briefs and legal memoranda greater than 20 pages in length (excluding attachments) shall contain a table of contents and a table of authorities with page references.

(3) The original of any filed docu­ment (other than exhibits) shall be signed by the party filing or by its at­torney or other representative. The signature constitutes a representation by the signer that he has read the doc­ument, that to the best of his knowl­edge, information and belief, the state­ments made therein are true , and that it is not interposed for delay.

(4) The first document filed by any person shall contain the name, address, and telephone number of an individual authorized to receive service relating

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Environmental Protection Agency

to the proceeding. Parties shall promptly file any changes in this infor­mation with the Regional Hearing Clerk, and serve copies on the Pre­siding Officer and all parties to the proceeding. If a party fails to furnish such information and any changes thereto, service to the party's last known address shall satisfy the re­quirements of paragraph (b)(2) of this section and §22.6.

(5) The Environmental Appeals Board or the Presiding Officer may exclude from the record any document which does not comply with this section. Written notice of such exclusion, stat­ing the reasons therefor, shall be promptly given to the person submit­ting the document. Such person may amend and resubmit any excluded doc­ument upon motion granted by the En­vironmental Appeals Board or the Pre­siding Officer, as appropriate .

(d) Confidentiality of business informa­tion. (1) A person who wishes to assert a business confidentiality claim with regard to any information contained in any document to be filed in a pro­ceeding under these Consolidated Rules of Practice shall assert such a claim in accordance with 40 CFR part 2 at the time that the document is filed. A doc­ument filed without a claim of business confidentiality shall be available to the public for inspection and copying.

(2) Two versions of any document which contains information claimed confidential shall be filed with the Re­gional Hearing Clerk:

(i) One version of the document shall contain the information claimed con­fidential. The cover page shall include the information required under para­graph (c)(2) of this section and the words " Business Confidentiality As­serted". The specific portion(s) alleged to be confidential shall be clearly iden­tified within the document .

(ii) A second version of the document shall contain all information except the specific information claimed con­fidential , which shall be redacted and replaced with notes indicating the na­ture of the information redacted. The cover page shall state that information claimed confidential has been deleted and that a complete copy of the docu­ment containing the information

§22.7

claimed confidential has been filed with the Regional Hearing Clerk.

(3) Both versions of the document shall be served on the Presiding Officer and the complainant. Both versions of the" document shall be served on any party, non-party participant, or rep­resentative thereof, authorized to re­ceive the information claimed con­fidential by the person making the claim of confidentiality. Only the re­dacted version shall be served on per­sons not authorized to receive the con­fidential information.

(4) Only the second, redacted version shan be treated as public information. An EPA officer or employee may dis­close information claimed confidential in accordance with paragraph (d)(l) of this section only as authorized under 40 CFR part 2.

[64 FR 40176, July 23, 1999, as amended at 69 FR 77639, Dec. 28, 2004)

§ 22.6 Filing and service of rulings, or­ders and decisions.

All rulings, orders, decisions, and other documents issued by the Re­gional Administrator or Presiding Offi­cer shall be filed with the Regional Hearing Clerk. All such documents issued by the Environmental Appeals Board shall be filed with the Clerk of the Board. Copies of such rulings, or­ders , decisions or other documents shall be served personally, by first class mail (including by certified mail or return receipt requested, Overnight Express and Priority Mail), by EPA's internal mail , or any reliable commer­cial delivery service , upon all parties by the Clerk of the Environmental Ap­peals Board, the Office of Administra­tive Law Judges or the Regional Hear­ing Clerk, as appropriate .

§ 22.7 Computation and extension of time.

(a) Computation. In computing any period of time prescribed or allowed in these Consolidated Rules of Practice, except as otherwise provided, the day of the event from which the designated period begins to run shall not be in­cluded. Saturdays, Sundays, and Fed­eral holidays shall be included. When a stated time expires on a Saturday, Sunday or Federal holiday, the stated

247

§22.8

time period shall be extended to in­clude the next business day.

(b) Extensions of time. The Environ­mental Appeals Board or the Presiding Officer may grant an extension of time for filing any document: upon timely motion of a party to the proceeding, for good cause shown, and after consid­eration of prejudice to other parties; or upon its own initiative. Any motion for an extension of time shall be filed suf­ficiently in advance of the due date so as to allow other parties reasonable op­portunity to respond and to allow the Presiding Officer or Environmental Ap­peals Board reasonable opportunity to issue an order.

(c) Service by mail or commercial deliv­ery service. Service of the complaint is complete when the return receipt is signed. Service of all other documents is complete upon mailing or when placed in the custody of a reliable com­mercial delivery service. Where a docu­ment is served by first class mail or commercial delivery service. but not by overnight or same-day delivery, 5 days shall be added to the time allowed by these Consolidated Rules of Practice for the filing of a responsive document .

§ 22.8 Ex parte discussion of pro-ceeding.

At no time after the issuance of the complaint shall the Administrator, the members of the Environmental Appeals Board, the Regional Administrator, the Presiding Officer or any other person who is likely to advise these officials on any decision in the proceeding, dis­cuss ex parte the merits of the pro­ceeding with any interested person out­side the Agency, with any Agency staff member who performs a prosecutorial or investigative function in such pro­ceeding or a factually related pro­ceeding, or with any representative of such person. Any ex parte memorandum or other communication addressed to the Administrator, the Regional Ad­ministrator, the Environmental Ap­peals Board, or the Presiding Officer during the pendency of the proceeding and relating to the merits thereof, by or on behalf of any party shall be re­garded as argument made in the pro­ceeding and shall be served upon all other parties. The other parties shall be given an opportunity to reply to

40 CFR Ch. I (7-1-14 Edition)

such memorandum or communication. The requirements of this section shall not apply to any person who has for­mally recused himself from all adju­dicatory functions in a proceeding, or who issues final orders only pursuant to § 22.18(b)(3).

§ 22.9 Examination of documents filed.

(a ) Subject to the provisions of law restricting the public disclosure of con­fidential information, any person may, during Agency business hours inspect and copy any document filed in any proceeding. Such documents shall be made available by the Regional Hear­ing Clerk, the Hearing Clerk, or the Clerk of the Board, as appropriate .

(b) The cost of duplicating documents shall be borne by the person seeking copies of such documents. The Agency may waive this cost in its discretion.

Subpart 8-Parties and Appearances

§ 22.10 Appearances.

Any party may appear in person or by counsel or other representative . A partner may appear on behalf of a part­nership and an officer may appear on behalf of a corporation. Persons who appear as counsel or other representa­tive must conform to the standards of conduct and ethics required of practi­tioners before the courts of the United States.

§ 22.11 Intervention and non-party briefs.

(a ) Intervention . Any person desiring to become a party to a proceeding may move for leave to intervene. A motion for leave to intervene that is filed after the exchange of information pursuant to § 22.19(a) shall not be granted unless the movant shows good cause for its failure to file before such exchange of information. All requirements of these Consolidated Rules of Practice shall apply to a motion for leave to inter­vene as if the movant were a party. The Presiding Officer shall grant leave to intervene in all or part of the pro­ceeding if: the movant claims an inter­est relating to the cause of action; a final order may as a practical matter impair the movant 's ability to protect

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that interest; and the movant's inter­est is not adequately represented by existing parties. The intervenor shall be bound by any agreements , arrange­ments and other matters previously made in the proceeding unless other­wise ordered by the Presiding Officer or the Environmental Appeals Board for good cause.

(b) Non-party briefs. Any person who is not a party to a proceeding may move for leave to file a non-party brief. The motion shall identify the interest of the applicant and shall explain the relevance of the brief to the pro­ceeding. All requirements of these Con­solidated Rules of Practice shall apply to the motion as if the movant were a party. If the motion is granted, the Presiding Officer or Environmental Ap­peals Board shall issue an order setting the time for filing such brief. Any party to the proceeding may file a re­sponse to a non-party brief within 15 days after service of the non-party brief.

§ 22.12 Consolidation and severance.

(a) Consolidation. The Presiding Offi­cer or the Environmental Appeals Board may consolidate any or all mat­ters at issue in two or more pro­ceedings subject to these Consolidated Rules of Practice where: there exist common parties or common questions of fact or law; consolidation would ex­pedite and simplify consideration of the issues; and consolidation would not adversely affect the rights of parties engaged in otherwise separate pro­ceedings. Proceedings subject to sub­part I of this part may be consolidated only upon the approval of all parties. Where a proceeding subject to the pro­visions of subpart I of this part is con­solidated with a proceeding to which subpart I of this part does not apply, the procedures of subpart I of this part shall not apply to the consolidated pro­ceeding.

(b) Severance . The Presiding Officer or the Environmental Appeals Board may, for good cause, order any pro­ceedings severed with respect to any or all parties or issues.

Subpart C-Prehearing Procedures

§22.14

§ 22.13 Commencement of a pro­ceeding.

(a ) Any proceeding subject to these Consolidated Rules of Practice is com­menced by filing with the Regional Hearing Clerk a complaint conforming to §22.14.

(b) Notwithstanding paragraph (a) of this section, where the parties agree to settlement of one or more causes of ac­tion before the filing of a complaint, a proceeding may be simultaneously commenced and concluded by the issuance of a consent agreement and final order pursuant to § 22.18(b )(2) and (3) .

§ 22.14 Complaint.

(a ) Content of complaint . Each com­plaint shall include:

(1) A statement reciting the sec­tion(s) of the Act authorizing the issuance of the complaint;

(2) Specific reference to each pr ovi­sion of the Act, implementing regula­tions, permit or order which respond­ent is alleged to have violated;

(3) A concise statement of the factual basis for each violation alleged;

(4) A description of all relief sought, including one or more of the following:

(i) The amount of the civil penalty which is proposed to be assessed, and a brief explanation of the proposed pen­alty;

(ii) Where a specific penalty demand is not made , the number of violations (where applicable, days of violation) for which a penalty is sought, a brief explanation of the severity of each vio­lation alleged and a recitation of the statutory ·penalty authority applicable for each violation alleged in the com­plaint;

(iii) A request for a Permit Action and a statement of its proposed terms and conditions; or

(iv) A request for a compliance or corrective action order and a state­ment of the terms and conditions thereof;

(5) Notice of respondent 's right to re­quest a hearing on any material fact alleged in the complaint, or on the ap­propriateness of any proposed penalty,

249

§22.15

compliance or corrective action order, or Permit Action;

(6) Notice if subpart I of this part ap­plies to the proceeding;

(7) The address of the Regional Hear­ing Clerk; and

(8) Instructions for paying penalties, if applicable.

(b) Rules of practice. A copy of these Consolidated Rules of Practice shall accompany each complaint served.

(c) Amendment of the complaint. The complainant may amend the complaint once as a matter of right at any time before the answer is filed. Otherwise the complainant may amend the com­plaint only upon motion granted by the Presiding Officer. Respondent shall have 20 additional days from the date of service of the amended complaint to file its answer.

(d) Withdrawal of the complaint . The complainant may withdraw the com­plaint, or any part thereof, without prejudice one time before the answer has been filed . After one withdrawal before the filing of an answer, or after the filing of an answer, the complain­ant may withdraw the complaint, or any part thereof, without prejudice only upon motion granted by the Pre­siding Officer.

§ 22.15 Answer to the complaint. (a) General. Where respondent: Con­

tests any material fact upon which the complaint is based; contends that the proposed penalty, compliance or cor­rective action order, or Permit Action, as the case may be, is inappropriate; or contends that it is entitled to judg­ment as a matter of law, it shall file an original and one copy of a written an­swer to the complaint with the Re­gional Hearing Clerk and shall serve copies of the answer on all other par­ties. Any such answer to the complaint must be filed with the Regional Hear­ing Clerk within 30 days after service of the complaint.

(b) Contents of the answer. The answer shall clearly and directly admit, deny or explain each of the factual allega­tions contained in the complaint with regard to which respondent has any knowledge. Where respondent has no knowledge of a particular factual alle­gation and so states, the allegation is deemed denied. The answer shall also

40 CFR Ch. I (7-1-14 Edition)

state: The circumstances or arguments which are alleged to constitute the grounds of any defense; the facts which respondent disputes; the basis for op­posing any proposed relief: and whether a hearing is requested.

(c) Request [or a hearing . A hearing upon the issues raised by the complaint and answer may be held if requested by respondent in its answer. If the re­spondent does not request a hearing. the Presiding Officer may hold a hear­ing if issues appropriate for adjudica­tion are raised in the answer.

(d ) Failure to admit, deny , or explain. Failure of respondent to admit. deny. or explain any material factual allega­tion contained in the complaint con­stitutes an admission of the allegation.

(e) Amendment of the answer. The re­spondent may amend the answer to the complaint upon motion granted by the Presiding Officer.

§ 22.16 Motions. (a ) General. Motions shall be served

as provided by §22.5(b)(2). Upon the fil­ing of a motion, other parties may file responses to the motion and the mov­ant may file a reply to the response. Any additional responsive documents shall be permitted only by order of the Presiding Officer or Environmental Ap­peals Board, as appropriate . All mo­tions, except those made orally on the record during a hearing, shall :

(1) Be in writing; (2) State the grounds therefor, with

particularity; (3) Set forth the relief sought; and (4) Be accompanied by any affidavit,

cert ificate, other evidence or legal memorandum relied upon.

(b) Response to motions. A party's re­sponse to any written motion must be filed within 15 days after service of such motion. The movant's reply to any written response must be filed within 10 days after service of such re­sponse and shall be limited to issues raised in the response . The Presiding Officer or the Environmental Appeals Board may set a shorter or longer time for response or reply , or make other or­ders concerning the disposition of mo­tions. The response or reply shall be accompanied by any affidavit. certifi­cate. other evidence, or legal memo­randum relied upon. Any party who

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fails to respond within the designated period waives any objection to the granting of the motion. •

(c) Decision. The Regional Judicial Officer (or in a proceeding commenced at EPA Headquarters, the Environ­mental Appeals Board) shall rule on all motions filed or made before an answer to the complaint is filed. Except as pro­vided in §§ 22.29(c) and 22.51, an Admin­istrative Law Judge shall rule on all motions filed or made after an answer is filed and before an initial decision has become final or has been appealed. The Environmental Appeals Board shall rule as provided in § 22.29(c) and on all motions filed or made after an appeal of the initial decision is filed , except as provided pursuant to §22.28 .

(d) Oral argument. The Presiding Offi­cer or the Environmental Appeals Board may permit oral argument on motions in its discretion.

§22.17 Default. (a ) Default . A party may be found to

be in default: after motion, upon fail­ure to file a timely answer to the com­plaint; upon failure to comply with the information exchange requirement s of §22.19(a) or an order of the Presiding Officer; or upon failure to appear at a conference or hearing. Default by re­spondent constitutes, for purposes of the pending proceeding only, an admis­sion of all facts alleged in the com­plaint and a waiver of respondent 's right to contest such factual allega­tions . Default by complainant con­stitutes a waiver of complainant's right to proceed on the merits of the action, and shall result in the dismissal of the complaint with prejudice.

(b) Motion [or default. A motion for default may seek resolution of all or part of the proceeding. Where the mo­tion requests the assessment of a pen­alty or the imposition of other relief against a defaulting party, the movant must specify the penalty or other relief sought and state the legal and factual grounds for the relief requested.

(c) Default order. When the Presiding Officer finds that default has occurred, he shall issue a default order against the defaulting party as to any or all parts of the proceeding unless the record shows good cause why a default order should not be issued. If the order

§ 22.18

resolves all outstanding issues and claims in the proceeding, it shall con­stitute the initial decision under these Consolidated Rules of Practice. The re­lief proposed in the complaint or the motion for default shall be ordered un­less the requested relief is clearly in­consistent with the record of the pro­ceeding or the Act. For good cause shown, the Presiding Officer may set aside a default order.

(d) Payment of penalty ; effective date of compliance or corrective action orders, and Permi t Actions. Any penalty as­sessed in the default order shall be­come due and payable by respondent without further proceedings 30 days after the default order becomes final under §22.27(c). Any default order re­quiring compliance or corrective ac­tion shall be effective and enforceable without further proceedings on the date the default order becomes final under §22.27(c) . Any Permit Action or­dered in the default order shall become effective without further proceedings on the date that the default order be­comes final under§ 22.27(c) .

§ 22.18 Quick resolution; settlement; alternative dispute resolution.

(a ) Quick resolution. (1) A respondent may resolve the proceeding at any time by paying the specific penalty proposed in the complaint or in complainant's prehearing exchange in full as specified by complainant and by filing with the Regional Hearing Clerk a copy of the check or other instrument of payment. If the complaint contains a specific proposed penalty and respondent pays that proposed penalty in full within 30 days after receiving the complaint, then no answer need be filed . This paragraph (a) shall not apply to any complaint which seeks a compliance or corrective action order or Permit Ac­tion. In a proceeding subject to the public comment provisions of § 22.45, this quick resolution is not available until 10 days after the close of the com­ment period.

(2) Any respondent who wishes to re­solve a proceeding by paying the pro­posed penalty instead of filing an an­swer, but who needs additional time to pay the penalty, may file a written statement with the Regional Hearing Clerk within 30 days after receiving the

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§22.18

complaint stating that the respondent agrees to pay the proposed penalty in accordance with paragraph (a)(1) of this section. The written statement need not contain any response to , or admission of, the allegations in the complaint. Within 60 days after receiv­ing the complaint, the respondent shall pay the full amount of the proposed penalty. Failure to make such payment within 60 days of receipt of the com­plaint may subject the respondent to default pursuant to §22.17.

(3) Upon receipt of payment in full, the Regional Judicial Officer or Re­gional Administrator, or, in a pro­ceeding commenced at EPA Head­quarters, the Environmental Appeals Board, shall issue a final order. Pay­ment by respondent shall constitute a waiver of respondent 's rights to con­test the allegations and to appeal the final order.

(b) Settlement . (1) The Agency encour­ages settlement of a proceeding at any time if the settlement is consistent with the provisions and objectives of the Act and applicable regulations. The parties may engage in settlement dis­cussions whether or not the respondent requests a hearing. Settlement discus­sions shall not affect the respondent 's obligation to file a timely answer under § 22.15.

(2) Consent agreement. Any and all terms and conditions of a settlement shall be recorded in a written consent agreement signed by all parties or their representatives. The consent agreement shall state that, for the pur­pose of the proceeding, respondent: Ad­mits the jurisdictional allegations of the complaint; admits the facts stipu­lated in the consent agreement or nei­ther admits nor denies specific factual allegations contained in the complaint; consents to the assessment of any stat­ed civil penalty, to the issuance of any specified compliance or corrective ac­tion order, to any conditions specified in the consent agreement, and to any stated Permit Action; and waives any right to contest the allegations and its right to appeal the proposed final order accompanying the consent agreement. Where complainant elects to com­mence a proceeding pursuant to §22.13(b), the consent agreement shall also contain the elements described at

40 CFR Ch. I (7-1-14 Edition)

§22.14(a )(1)-(3) and (8) . The parties shall forward the executed consent agree­ment and a proposed final order to the Regional Judicial Officer or Regional Administrator, or, in a proceeding commenced at EPA Headquarters, the Environmental Appeals Board.

(3) Conclusion of proceeding. No settle­ment or consent agreement shall dis­pose of any proceeding under these Consolidated Rules of Practice without a final order from the Regional Judi­cial Officer or Regional Administrator, or, in a proceeding commenced at EPA Headquarters, the Environmental Ap­peals Board, ratifying the parties' con­sent agreement.

(c ) Scope of resolution or settlement. Full payment of the penalty proposed in a complaint pursuant to paragraph (a ) of this section or settlement pursu­ant to paragraph (b) of this section shall not in any case affect the right of the Agency or the United States to pursue appropriate injunctive or other equitable relief or criminal sanctions for any violations of law. Full payment of the penalty proposed in a complaint pursuant to paragraph (a) of this sec­tion or settlement pursuant to para­graph (b) of this section shall only re­solve respondent's liability for Federal civil penalties for the violations and fact s alleged in the complaint.

(d ) Alternative means of dispute resolu­tion. (1) The parties may engage in any process within the scope of the Alter­native Dispute Resolution Act ("ADRA"), 5 U.S.C. 581 et seq., which may facilitate voluntary settlement ef­forts . Such process shall be subject to the confidentiality provisions of the ADRA.

(2) Dispute resolution under this paragraph (d) does not divest the Pre­siding Officer of jurisdiction and does not automatically stay the proceeding. All provisions of these Consolidated Rules of Practice remain in effect not­withstanding any dispute resolution proceeding.

(3) The parties may choose any per­son to act as a neutral, or may move for the appointment of a neutral. If the Presiding Officer grants a motion for the appointment of a neutral. the Pre­siding Officer shall forward the motion to the Chief Administrative Law

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Judge, except in proceedings under sub­part I of this part, in which the Pre­siding Officer shall forward the motion to the Regional Administrator. The Chief Administrative Law Judge or Re­gional Administrator, as appropriate, shall designate a qualified neutral.

§ 22.19 Prehearing information ex­change; prehearing conference; other discovery.

(a) Prehearing information exchange. (1) In accordance with an order issued by the Presiding Officer, each party shall file a prehearing information ex­change. Except as provided in § 22.22(a), a document or exhibit that has not been included in prehearing informa­tion exchange shall not be admitted into evidence, and any witness whose name and testimony summary has not been included in prehearing informa­tion exchange shall not be allowed to testify. Parties are not required to ex­change information relating to settle­ment which would be excluded in the federal courts under Rule 408 of the Federal Rules of Evidence. Documents and exhibits shall be marked for identi­fication as ordered by the Presiding Of­ficer.

(2) Each party's prehearing informa­tion exchange shall contain:

(i) The names of any expert or other witnesses it intends to call at the hear­ing, together with a brief narrative summary of their expected testimony, or a statement that no witnesses will be called; and (ii) Copies of all docu­ments and exhibits which it intends to introduce into evidence at the hearing.

(3) If the proceeding is for the assess­ment of a penalty and complainant has already specified a proposed penalty, complainant shall explain in its pre­hearing information exchange how the proposed penalty was calculated in ac­cordance with any criteria set forth in the Act, and the respondent shall ex­plain in its prehearing information ex­change why the proposed penalty should be reduced or eliminated.

(4) If the proceeding is for the assess­ment of a penalty and complainant has not specified a proposed penalty, each party shall include in its prehearing in­formation exchange all factual infor­mation it considers relevant to the as­sessment of a penalty. Within 15 days

§22.19

after respondent files its prehearing in­formation exchange, complainant shall file a document specifying a proposed penalty and explaining how the pro­posed penalty was calculated in accord­ance with any criteria set forth in the Act.

(b) Prehearing conference. The Pre­siding Officer, at any time before the hearing begins, may direct the parties and their counsel or other representa­tives to participate in a conference to consider:

(1) Settlement of the case; (2) Simplification of issues and stipu­

lation of facts not in dispute; (3) The necessity or desirability of

amendments to pleadings; (4) The exchange of exhibits, docu­

ments, prepared testimony, and admis­sions or stipulations of fact which will avoid unnecessary proof;

(5) The limitation of the number of expert or other witnesses;

(6) The time and place for the hear­ing; and

(7) Any other matters which may ex­pedite the disposition of the pro­ceeding.

(c) Record of the prehearing conference. No transcript of a prehearing con­ference relating to settlement shall be made . With respect to other prehearing conferences, no transcript of any pre­hearing conferences shall be made un­less ordered by the Presiding Officer. The Presiding Officer shall ensure that the record of the proceeding includes any stipulations, agreements, rulings or orders made during the conference.

(d) Location of prehearing conference. The prehearing conference shall be helQ. in the county where the respond­ent resides or conducts the business which the hearing concerns, in the city in which the relevant Environmental Protection Agency Regional Office is located, or in Washington, DC, unless the Presiding Officer determines that there is good cause to hold it at an­other location or by telephone.

(e) Other discovery. (1) After the infor­mation exchange provided for in para­graph (a) of this section, a party may move for additional discovery. The mo­tion shall specify the method of dis­covery sought, provide the proposed discovery instruments, and describe in detail the nature of the information

253

§22.20

and/or documents sought (and, where relevant, the proposed time and place where discovery would be conducted) . The Presiding Officer may order such other discovery only if it:

(i) Will neither unreasonably delay the proceeding nor unreasonably bur­den the non-moving party;

(ii) Seeks information that is most reasonably obtained from the non-mov­ing party, and which the non-moving party has refused to provide volun­tarily; and

(iii) Seeks information that has sig­nificant probative value on a disputed issue of material fact relevant to li­ability or the relief sought.

(2) Settlement positions and informa­tion regarding their development (such as penalty calculations for purposes of settlement based upon Agency settle­ment policies) shall not be discover­able.

(3) The Presiding Officer may order depositions upon oral questions only in accordance with paragraph (e)(1) of this section and upon an additional finding that:

(i) The information sought cannot reasonably be obtained by alternative methods of discovery; or

(ii) There is a substantial reason to believe that relevant and probative evi­dence may otherwise not be preserved for presentation by a witness at the hearing.

(4) The Presiding Officer may require the attendance of witnesses or the pro­duction of documentary evidence by subpoena, if authorized under the Act. The Presiding Officer may issue a sub­poena for discovery purposes only in accordance with paragraph (e)(1) of this section and upon an additional showing of the grounds and necessity therefor. Subpoenas shall be served in accord­ance with § 22.5(b)(1). Witnesses sum­moned before the Presiding Officer shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. Any fees shall be paid by the party at whose request the witness appears. Where a witness ap­pears pursuant to a request initiated by the Presiding Officer, fees shall be paid by the Agency.

(5) Nothing in this paragraph (e) shall limit a party 's right to request admis­sions or stipulations, a respondent's

40 CFR Ch. I (7-1-14 Edition)

right to request Agency records under the Federal Freedom of Information Act. 5 U.S .C. 552, or EPA's authority under any applicable law to conduct in­spections, issue information request letters or administrative subpoenas, or otherwise obtain information.

(f) Supplementing prior exchanges. A party who has made an information ex­change under paragraph (a) of this sec­tion, or who has exchanged informa­tion in response to a request for infor­mation or a discovery order pursuant to paragraph (e) of this section, shall promptly supplement or correct the ex­change when the party learns that the information exchanged or response pro­vided is incomplete, inaccurate or out­dated, and the additional or corrective information has not otherwise been disclosed to the other party pursuant to this section.

(g ) Failure to exchange information. Where a party fails to provide informa­tion within its control as required pur­suant to this section, the Presiding Of­ficer may, in his discretion:

(1) Infer that the information would be adverse to the party failing to pro­vide it;

(2) Exclude the information from evi­dence; or

(3) Issue a default order under §22.17(c).

§ 22.20 Accelerated decision; decision to dismiss.

(a ) General. The Presiding Officer may at any time render an accelerated decision in favor of a party as to any or all parts of the proceeding, without further hearing or upon such limited additional evidence, such as affidavits, as he may require, if no genuine issue of material fact exists and a party is entitled to judgment as a matter of law. The Presiding Officer, upon mo­tion of the respondent, may at any time dismiss a proceeding without fur­ther hearing or upon such limited addi­tional evidence as he requires, on the basis of failure to establish a prima facie case or other grounds which show no right to relief on the part of the complainant.

(b) Effect . (1) If an accelerated deci­sion or a decision to dismiss is issued as to all issues and claims in the pro­ceeding, the decision constitutes an

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initial decision of the Presiding Offi­cer, and shall be filed with the Re­gional Hearing Clerk.

(2) If an accelerated decision or a de­cision to dismiss is rendered on less than all issues or claims in the pro­ceeding, the Presiding Officer shall de­termine what material fac t s exist with­out substantial controversy and what material fac t s remain controver ted. The partial accelerated decision or the order dismissing certain counts shall specify the facts which appear substan­tially uncontroverted, and the issues and claims upon which the hearing will proceed.

Subpart D-l-learing Procedures

§ 22.21 Assignment of Presiding Offi­cer; scheduling the hearing.

(a) Assignment of Presiding Officer. When an answer is filed, the Regional Hearing ·clerk shall forward a copy of the complaint, the answer, and any other documents filed in the pro­ceeding to the Chief Administrative Law Judge who shall serve as Presiding Officer or assign another Administra­tive Law Judge as Presiding Officer. The Presiding Officer shall then obtain the case file from the Chief Adminis­trative Law Judge and notify the par­ties of his assignment.

{b) Notice of hearing. The Presiding Officer shall hold a hearing if the pro­ceeding presents genuine issues of ma­terial fact . The Presiding Officer shall serve upon the parties a notice of hear­ing setting forth a time and place for the hearing not later than 30 days prior to the date set for the hearing. The Presiding Officer may require the at­tendance of witnesses or the produc­tion of documentary evidence by sub­poena, if authorized under the Act, upon a showing of the grounds and ne­cessity therefor, and the materiality and relevancy of the evidence to be ad­duced.

(c) Postponement of hearing. No re­quest for postponement of a hearing shall be granted except upon motion and for good cause shown.

(d) Location of the hearing. The loca­tion of the hearing shall be determined in accordance with the method for de­termining the location of a prehearing conference under § 22.19(d).

§22.22

§ 22.22 Evidence. (a ) General . {1) The Presiding Officer

shall admit all evidence which is not irrelevant, immaterial, unduly repeti­tious, unreliable , or of little probative value , except that evidence relating to settlement which would be excluded in the federal courts under Rule 408 of the Federal Rules of Evidence (28 U.S.C.) is not admissible . If, however, a party fails to provide any document, exhibit, witness name or summary of expected testimony required to be exchanged under § 22.19 (a ), (e) or (f) to all parties at least 15 days before the hearing date, the Presiding Officer shall not admit the document, exhibit or testi­mony into evidence, unless the non-ex­changing party had good cause for fail­ing to exchange the required informa­tion and provided the required informa­tion to all other parties as soon as it had control of the information, or .had good cause for not doing so .

(2) In the presentation, admission, disposition, and use of oral and written evidence, EPA officers, employees and authorized representatives shall pre­serve the confidentiality of informa­tion claimed confidential, whether or not the claim is made by a party to the proceeding, unless disclosure is author­ized pursuant to 40 CFR part 2. A busi­ness confidentiality claim shall not prevent information from being intro­duced into evidence, but shall instead require that the information be treated in accordance with 40 CFR part 2, sub­part B. The Presiding Officer or the En­vironmental Appeals Board may con­sider such evidence in a proceeding closed to the public, and which may be before some, but not all , parties, as necessary. Such proceeding shall be closed only to the extent necessary to comply with 40 CFR part 2, subpart B, for information claimed confidential. Any affected person may move for an order protecting the information claimed confidential.

(b) Examination of witnesses . Wit­nesses shall be examined orally, under oath or affirmation, except as other­wise provided in paragraphs (c) and (d) of this section or by the Presiding Offi­cer. Parties shall have the right to cross-examine a witness who appears at the hearing provided that such cross­examination is not unduly repetitious.

255

§22.23

(c) Written testimony. The Presiding Officer may admit and insert into the record as evidence, in lieu of oral testi­mony, written testimony prepared by a witness. The admissibility of any part of the testimony shall be subject to the same rules as if the testimony were produced under oral examination. Be­fore any such testimony is read or ad­mitted into evidence, the party who has called the witness shall deliver a copy of the testimony to the Presiding Officer, the reporter, and opposing counsel. The witness presenting the testimony shall swear to or affirm the testimony and shall be subject to ap­propriate oral cross-examination.

(d) Admission of affidavits where the witness is unavailable. The Presiding Of­ficer may admit into evidence affida­vits of witnesses who are unavailable. The term "unavailable" shall have the meaning accorded to it by Rule 804(a) of the Federal Rules of Evidence.

(e) Exhibits. Where practicable, an original and one copy of each exhibit shall be filed with the Presiding Officer for the record and a copy shall be fur­nished to each party. A true copy of any exhibit may be substituted for the original.

(f) Official notice. Official notice may be taken of any matter which can be judicially noticed in the Federal courts and of other facts within the special­ized knowledge and experience of the Agency. Opposing parties shall be given adequate opportunity to show that such facts are erroneously noticed.

§ 22.23 Objections and offers of proof. (a) Objection. Any objection con­

cerning the conduct of the hearing may be stated orally or in writing during the hearing. The party raising the ob­jection must supply a short statement of its grounds. The ruling by the Pre­siding Officer on any objection and the reasons given for it shall be part of the record. An exception to each objection overruled shall be automatic and is not waived by further participation in the hearing.

(b) Offers of proof. Whenever the Pre­siding Officer denies a motion for ad­mission into evidence, the party offer­ing the information may make an offer of proof, which shall be included in the record. The offer of proof for excluded

40 CFR Ch. I (7-1-14 Edition)

oral testimony shall consist of a brief statement describing the nature of the information excluded. The offer of proof for excluded documents or exhib­its shall consist of the documents or exhibits excluded. Where the Environ­mental Appeals Board decides that the ruling of the Presiding Officer in ex­cluding the information from evidence was both erroneous and prejudicial. the hearing may be reopened to permit the taking of such evidence.

§ 22.24 Burden of presentation; burden of persuasion; preponderance of the evidence standard.

(a) The complainant has the burdens of presentation and persuasion that the violation occurred as set forth in the complaint and that the relief sought is appropriate. Following complainant's establishment of a prima facie case, re­spondent shall have the burden of pre­senting any defense to the allegations set forth in the complaint and any re­sponse or evidence with respect to the appropriate relief. The respondent has the burdens of presentation and persua­sion for any affirmative defenses.

(b) Each matter of controversy shall be decided by the Presiding Officer upon a preponderance of the evidence.

§ 22.25 Filing the transcript. The hearing shall be transcribed ver­

batim. Promptly following the taking of t he last evidence, the reporter shall transmit to the Regional Hearing Clerk the original and as many copies of the transcript of testimony as are called for in the reporter's contract with the Agency, and also shall transmit to the Presiding Officer a copy of the tran­script. A certificate of service shall ac­company each copy of the transcript. The Regional Hearing Clerk shall no­tify all parties of the availability of the transcript and shall furnish the parties with a copy of the transcript upon payment of the cost of reproduc­tion, unless a party can show that the cost is unduly burdensome. Any person not a party to the proceeding may re­ceive a copy· of the transcript upon payment of the reproduction fee , ex­cept for those parts of the transcript ordered to be kept confidential by the Presiding Officer. Any party may file a motion to conform the transcript to

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the actual testimony within 30 days after receipt of the transcript, or 45 days after the parties are notified of the availability of the transcript, whi~hever is sooner.

§ 22.26 Proposed findings, conclusions, an d order.

After the hearing, any party may file proposed findings of fact, conclusions of law, and a proposed order, together with briefs in support thereof. The Pre­siding Officer shall set a schedule for filing these documents and any reply briefs, but shall not require them be­fore the last date for filing motions under § 22.25 to conform the transcript to the actual testimony. All submis­sions shall be in writing, shall be served upon all parties , and shall con­tain adequate references to the record and authorities relied on.

Subpart E-lnitial Decision and Motion To Reopen a Hearing

§ 22.27 Initial Decision. (a) Filing and contents. After the pe­

riod for filing briefs under § 22.26 has expired, the Presiding Officer shall issue an initial decision. The initial de­cision shall contain findings of fact, conclusions regarding all material issues of law or discretion, as well as reasons therefor, and, if appropriate, a recommended civil penalty assessment, compliance order, corrective action order, or Permit Action. Upon receipt of an initial decision , the Regional Hearing Clerk shall forward copies of the initial decision to the Environ­mental Appeals Board and the Assist­ant Administrator for the Office of En­forcement and Compliance Assurance.

(b) Amount of civil penalty. If the Pre­siding Officer determines that a viola­tion has occurred and the complaint seeks a civil penalty, the Presiding Of­ficer shall determin e the amount of the recommended civil penalty based on the evidence in the record and in ac­cordance with any penalty criteria set forth in the Act. The Presiding Officer shall consider any civil penalty guide­lines issued under the Act. The Pre­siding Officer shall explain in detail in the initial decision how the penalty to be assessed corresponds to any penalty criteria set forth in the Act. If the Pre-

§22.28

siding Officer decides to assess a pen­alty different in amount from the pen­alty proposed by complainant, the Pre­siding Officer shall set forth in the ini­tial decision the specific reasons for the increase or decrease. If the re­spondent has defaulted, the Presiding Officer shall not assess a penalty great­er than that proposed by complainant in the complaint, the prehearing infor­mation exchange or the motion for de­fault , whichever is less.

(c) Effect of initial decision. The initial decision of the Presiding Officer shall become a final order 45 days after its service upon the parties and without further proceedings unless:

(1) A party moves to reopen the hear­ing;

(2) A party appeals the initial deci­sion to the Environmental Appeals Board;

(3) A party moves to set aside a de­fault order that constitutes an initial decision; or

(4) The Environmental Appeals Board elects to review the initial decision on its own initiative.

(d) Exhaustion of administrative rem­edies. Where a respondent fails to ap­peal an initial decision to the Environ­mental Appeals Board pursuant to §22.30 and that initial decision becomes a final order pursuant to paragraph (c) of this section, respondent waives its rights to judicial review. An initial de­cision that is appealed to the Environ­mental Appeals Board shall not be final or operative pending the Environ­mental Appeals Board's issuance of a final order.

§ 22.28 Motion to reopen a hearing.

(a ) Filing and content. A motion to re­open a hearing to take further evidence must be filed no later than 20 days after service of the initial decision and shall state the specific grounds upon which relief is sought. Where the mov­ant se.eks to introduce new evidence , the motion shall: state briefly the na­ture and purpose of the evidence to be adduced; show that such evidence is not cumulative; and show good cause why such evidence was not adduced at the hearing. The motion shall be made to the Presiding Officer and filed with the Regional Hearing Clerk.

257

§22.29

(b) Disposition of motion to reopen a hearing. Within 15 days following the service of a motion to reopen a hear­ing. any other party to the proceeding may file with the Regional Hearing Clerk and serve on all other parties a response . A reopened hearing shall be governed by the applicable sections of these Consolidated Rules of Practice. The filing of a motion to reopen a hear­ing shall automatically stay the run­ning of the time periods for an initial decision becoming final under §22.27(c) and for appeal under § 22.30. These time periods shall begin again i~ full when the motion is denied or an amended initial decision is served.

Subpart F-Appeals and Administrative Review

§ 22.29 Appeal from or review of inter­locutory orders or rulings.

(a) Request for interlocutory appeal. Appeals from orders or rulings other than an initial decision shall be al­lowed only at the discretion of the En­vironmental Appeals Board. A party seeking interlocutory appeal of such orders or rulings to the Environmental Appeals Board shall file a motion with­in 10 days of service of the order or rul­ing, requesting that the Presiding Offi­cer forward the order or ruling to the Environmental Appeals Bo.ard for re­view, and stating briefly the grounds for the appeal.

(b) Availability of interlocutory appeal. The Presiding Officer may recommend any order or ruling for review by the Environmental Appeals Board when:

(1) The order or ruling involves an important question of law or policy concerning which there is substantial grounds for difference of opinion; and

(2) Either an immediate appeal from the order or ruling will materially ad­vance the ultimate termination of the proceeding, or review after the final order is issued will be inadequate or in­effective.

(c) Interlocutory review . If the Pre­siding Officer has recommended review and the Environmental Appeals Board determines that interlocutory review is inappropriate, or takes no action with­in 30 days of the Presiding Officer's rec­ommendation, the appeal is dismissed. When the Presiding Officer declines t o

40 CFR Ch. I (7-1-14 Edition)

recommend review of an order or rul­ing, it may be reviewed by the Environ­mental Appeals Board only upon appeal from the initial decision, except when the Environmental Appeals Board de­termines, upon motion of a party and in exceptional circumstances, that to delay review would be contrary to the public interest. Such motion shall be filed within 10 days of service of an order of the Presiding Officer refusing to recommend such order or ruling for interlocutory review.

§ 22.30 Appeal from or review of initial decision.

(a) Notice of appeal. (1) Within 30 days after the initial decision is served, any party may appeal any adverse order or ruling of the Presiding Officer by filing an original and one copy of a notice of appeal and an accompanying appellate brief with the Environmental Appeals Board. Appeals sent by U.S. mail (ex­cept by U.S . Postal Express Mail) shall be addressed to the Environmental Ap­peals Board at its official mailing ad­dress: Clerk of the Board (Mail Code 1103B), United States Environmental Protection Agency, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. Appeals delivered by hand or courier (including deliveries by U.S . Postal Ex­press Mail or by a commercial delivery service) shall be delivered to Suite 600, 1341 G Street, NW. , Washingt on, DC 20005. One copy of any document filed with the Clerk of the Board shall also be served on the Regional Hearing Clerk. Appellant also shall serve a copy of the notice of appeal upon the Pre­siding Officer. Appellant shall simulta­neously serve one copy of the notice and brief upon all other parties and non-party participants. The notice of appeal shall summarize the order or ruling, or part thereof, appealed from. The appellant's brief shall contain ta­bles of contents and authorities (with page references). a statement of the issues presented for review. a state­ment of the nature of the case and the fac t s relevant to the issues presented for review (with appropriate references to the record), argument on the issues presented, a short conclusion stating the precise relief sought. al ternative

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findings of fact, and alternative con­clusions regarding issues of law or dis­cretion. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal on any issue within 20 days after the date on which the first notice of appeal was served.

(2) Within 20 days of service of no­tices of appeal and briefs under para­graph (a)(l) of this section, any other party or non-party participant may file with the Environmental Appeals Board an original and one copy of a response brief responding to argument raised by the appellant, together with reference to the relevant portions of the record , initial decision, or opposing brief. Ap­pellee shall simultaneously serve one copy of the response brief upon each party , non-party participant, and the Regional Hearing Clerk. Response briefs shall be limited to the scope of the appeal brief. Further briefs may be filed only with the permission of the Environmental Appeals Board.

(b) Review initiated by the Environ­mental Appeals Board. Whenever the En­vironmental Appeals Board determines to review an initial decision on its own initiative, it shall file notice of its in­tent · to review that decision with the Clerk of the Board, and serve it upon the Regional Hearing Clerk, the Pre­siding Officer and the parties within 45 days after the initial decision was served upon the parties. The notice shall include a statement of issues to be briefed by the parties and a time schedule for the filing and service of briefs.

(c) Scope of appeal or review. The par­ties' rights of appeal shall be limited to those issues raised during the course of the proceeding and by the initial deci­sion, and to issues concerning subject matter jurisdiction. If the Environ­mental Appeals Board determines that issues raised, but not appealed by the parties, should be argued, it shall give the parties reasonable written notice of such determination to permit prepara­tion of adequate argument. The Envi­ronmental Appeals Board may remand the case to the Presiding Officer for further proceedings.

(d) Argument before the Environmental Appeals Board. The Environmental Ap­peals Board may, at its discretion,

§ 22.31

order oral argument on any or all issues in a proceeding.

(e) Motions on appeal. All motions made during the course of an appeal shall conform to §22.16 unless other­wise provided.

(f) Decision . The Environmental Ap­peals Board shall adopt, modify, or set aside the findings of fact and conclu­sions of law or discretion contained in the decision or order being reviewed, and shall set forth in the final order the reasons for its actions. The Envi­ronmental Appeals Board may assess a penalty that is higher or lower t han the amount recommended to be as­sessed in the decision or order being re­viewed or from the amount sought in the complaint, except that if the order being reviewed is a default order, the Environmental Appeals Board may not increase t he amount of the penalty

.above that proposed in the complaint or in the motion for default, whichever is less. The Environmental Appeals Board may adopt, modify or set aside any recommended compliance or cor­rective action order or Permit Action. The Environmental Appeals Board may remand the case to the Presiding Offi­cer for further action.

[64 FR 40176, July 23, 1999, as amended at 68 FR 2204, Jan. 16, 2003; 69 FR 77639, Dec . 28, 2004]

Subpart G-Final Order

§ 22.31 Final order. (a ) Effect of final order. A final order

constitutes the final Agency action in a proceeding. The final order shall not in any case · affect the right of the Agency or the United States to pursue appropriate injunctive or other equi­table relief or criminal sanctions for any violations of law. The final order shall resolve only those causes of ac­tion alleged in the complaint, or for proceedings commenced pursuant to §22.13(b) , alleged in the consent agree­ment. The final order does not waive, extinguish or otherwise affect respond­ent's obligation to comply with all ap­plicable provisions of the Act and regu­lations promulgated thereunder.

(b) Effective date. A final order is ef­fective upon filing . Where an initial de­cision becomes a final order pursuant to § 22.27(c), the final order is effective

259

§22.32

45 days after the initial decision is served on the parties.

(c) Payment of a civil penalty. The re­spondent shall pay the full amount of any civil penalty assessed in the final order within 30 days after the effective date of the final order unless otherwise ordered. Payment shall be made by sending a cashier's check or certified check to the payee specified in the complaint, unless otherwise instructed by the complainant. The check shall note the case title and docket number. Respondent shall serve copies of the check or other instrument of payment on the Regional Hearing Clerk and on complainant. Collection of interest on overdue payments shall be in accord­ance with the Debt Collection Act, 31 u.s.c. 3717.

(d) Other relief. Any final order re­quiring compliance or corrective ac­tion, or a Permit Action, shall become effective and enforceable without fur­ther proceedings on the effective date of the final order unless otherwise or­dered.

(e) Final orders to Federal agencies on appeal. (1) A final order of the Environ­mental Appeals Board issued pursuant to §22.30 to a department, agency , or instrumentality of the United States shall become effective 30 days after its service upon the parties unless the head of the affected department, agen­cy, or instrumentality requests a con­ference with the Administrator in writ­ing and serves a copy of the request on the parties of record within 30 days of service of the final order. If a timely request is made , a decision by the Ad­ministrator shall become the final order.

(2) A motion for reconsideration pur­suant to §22.32 shall not toll the 30-day period described in paragraph (e)(1) of this section unless specifically so or­dered by the Environmental Appeals Board.

§ 22.32 Motion to reconsider a final order.

Motions to reconsider a final order issued pursuant to § 22.30 shall be filed within 10 days after service of the final order. Motions must set forth the mat­ters claimed to have been erroneously decided and the nature of the alleged errors. Motions for reconsideration

40 CFR Ch. I (7-1-14 Edition)

under this provision shall be directed to , and decided by, the Environmental Appeals Board. Motions for reconsider­ation directed to the Administrator. rather than to the Environmental Ap­peals Board, will n·ot be considered, ex­cept in cases that the Environmental Appeals Board has referred to the Ad­ministrator pursuant to §22.4(a) and in which the Administrator has issued the final order. A motion for reconsider­ation shall not stay the effective date of t he final order unless so ordered by the Environmental Appeals Board.

Subpart H-Supplemental Rules

§ 22.33 [Reserved]

§ 22.34 s'T!~:~ental rules governing the a · "strative assessment of civil penalties under the Clean Air Act.

(a ) Scope. This section shall apply, in conjunction with §§ 22.1 through 22.32, in administrative proceedings .to assess a civil penalty conducted under sec­tions 113(d), 205(c) , 2ll(d) , and 213(d) of the Clean Air Act, as amended (42 U.S.C. 7413(d). 7524(c), 7545(d), and 7547(d)). Where inconsistencies exist be­tween this section and §§ 22.1 through 22.32, t his section shall apply.

(b) Issuance of notice. Prior to the issuance of a final order assessing a civil penalty, the person to whom the order is to be issued shall be given written notice of the proposed issuance of the order. Service of a complaint or a consent agreement and final order pursuant to § 22.13 satisfies this notice requirement.

§ 22.35 Supplemental rules governing the administrative assessment of civil penalties under the Federal In­secticide, Fungicide, and Rodenticide Act.

(a ) Scope. This section shall apply, in conjunction with §§22.1 through 22.32, in administrative proceedings to assess a civil penalty conducted under section 14(a ) of the Federal Insecticide, Fun­gicide , and Rodenticide Act as amend­ed (7 U.S .C. 136l(a)). Where inconsist­encies exist between this section and §§ 22.1 through 22 .32, this section shall apply.

(b) Venue . The prehearing conference and the hearing shall be held in the

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county, parish, or incorporated city of the residence of the person charged, unless otherwise agreed in writing by all parties. For a person whose resi­dence is outside the United States and outside any territory or possession of the United States, the prehearing con­ference and the hearing shall be held at the EPA office listed at 40 CFR 1.7 that is closest to either the person's pri­mary place of business within the United States, or the primary place of business of the person 's U.S . agent, un­less otherwise agreed by all parties.

§ 22.36 [Reserved]

§ 22.37 Supplemental rules governing administrative proceedings under the Solid Waste Disposal Act.

(a) Scope. This section shall apply, in conjunction with §§ 22.1 through 22 .32, in administrative proceedings under sections 3005(d) and (e), 3008, 9003 and 9006 of the Solid Waste Disposal Act (42 U.S .C. 6925(d) and (e), 6928, 6991b and 6991e) (" SWDA"). Where inconsist­encies exist between this section and §§22.1 through 22 .32, this section shall apply.

(b) Corrective action and compliance or­ders . A complaint may contain a com­pliance order issued under section 3008(a) or section 9006(a), or a correc­tive action order issued under section 3008(h) or section 9003(h)( 4) of the SWDA. Any such order shall automati­cally become a final order unless, no later than 30 days after the order is served, the respondent requests a hear­ing pursuant to § 22 .15.

§ 22.38 Supplemental rules of practice governing the administrative as· sessment of civil penalties under the Clean Water Act.

(a) Scope. This section shall apply, in conjunction with §§ 22.1 through 22.32 and §22.45, in administrative pro­ceedings for the assessment of any civil penalty under section 309(g) or section 31l(b)(6) of the Clean Water Act ("CWA")(33 U.S.C. 1319(g) and 1321(b)(6)). Where inconsistencies exist between this section and §§22.1 through 22.32, this section shall apply.

(b) Consultation with States. For pro­ceedings pursuant to section 309(g), the complainant shall provide the State agency with the most direct authority

§22.39

over the matters at issue in the case an opportunity to consult with the com­plainant. Complainant shall notify the State agency within 30 days following proof of service of the complaint on the respondent or, in the case of a pro­ceeding pr oposed to be commenced pur­suant to § 22.13(b), no less than 40 days before the issuance of an order assess­ing a civil penalty.

(c) Administrative procedure and judi­cial review. Action of the Administrator for which review could have been ob­tained under section 509(b)(1) of the CWA, 33 U.S.C. 1369(b)(1), shall not be subject to review in an administrative proceeding for the assessment of a civil penalty under section 309(g) or section 31l(b)(6).

§ 22.39 Supplemental rules governing the administrative assessment of civil penalties under section 109 of the Comprehensive Environmental Response, Compensation, and Li· ability Act of 1980, as amended.

(a) Scope. This section shall apply, in conjunction with §§22.10 through 22.32, in administrative proceedings for the assessment of any civil penalty under section 109 of t he Comprehensive Envi­ronmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C . 9609). Where inconsistencies exist between this section and §§ 22.1 through 22.32, this section shall apply.

(b) Judicial review . Any person whore­quested a hearing with respect to a Class II civil penalty under section 109(b) of CERCLA, 42 U.S.C . 9609(b), and who is the recipient of a final order as­sessing a civil penalty may file a peti­tion for judicial review of such order with the United States Court of Ap­peals for the District of Columbia or for any other circuit in which such per­son resides or transacts business. Any person who requested a hearing with respect to a Class I civil penalty under section 109(a)(4) of CERCLA, 42 U.S.C. 9609(a)(4), and who is the recipient of a final order assessing the civil penalty may file a petition for judicial review of such order with the appropriate dis­trict court of the United States. All pe­titions must be filed within 30 days of the date the order making the assess­ment was served on the parties.

(c) Payment of civil penalty assessed. Payment of civil penalties assessed in

261

§22.40

the final order shall be made by for­warding a cashier's check, payable to the "EPA, Hazardous Substances Superfund," in the amount assessed, and noting the case title and docket number, to the appropriate regional Superfund Lockbox Depository.

§ 22.40 [Reserved]

§ 22.41 Supplemental rules governing the administrative assessment of civil penalties under Title II of the 'Toxic Substance Control Act, en· acted as section 2 of the Asbestos Hazard Emergency Response Act (AHERA).

(a) Scope. This section shall apply, in conjunction with §§ 22.1 through 22.32, in administrative proceedings to assess a civil penalty conducted under section 207 of the Toxic Substances Control Act ("TSCA") (15 U.S .C. 2647) . Where inconsistencies exist between this sec­tion and §§22.1 through 22.3;2, this sec­tion shall apply.

(b) Collection of civil penalty. Any civil penalty collected under TSCA section 207 shall be used by the local edu­cational agency for purposes of com­plying with Title II of TSCA. Any por­tion of a civil penalty remaining unspent after a local educational agen­cy achieves compliance shall be depos­ited into the Asbestos Trust Fund es­tablished under section 5 of AHERA.

§ 22.42 Supplemental rules governing the administrative assessment of civil penalties for violations of com­pliance orders issued to owners or operators of public water systems under part B of the Saf~i! Drinking Water Act.

(a) Scope. This section shall apply, in conjunction with §§22.1 through 22.32, in administrative proceedings to assess a civil penalty under section 1414(g)(3)(B) of the Safe Drinking Water Act, 42 U.S.C. 300g-3(g)(3)(B). Where in­consistencies exist between this sec­tion and §§22.1 through 22.32, this sec­tion shall apply.

(b) Choice of forum. A complaint which specifies that subpart I of this part applies shall also state that re­spondent has a right to elect a hearing on the record in accordance with 5 U.S .C. 554, and that respondent waives this right unless it requests in its an­swer a hearing on the record in accord-

40 CFR Ch. I (7-1-14 Edition)

ance with 5 U.S.C. 554. Upon such re­quest, the Regional Hearing Clerk shall recaption the documents in the record as necessary, and notify the parties of the changes.

§ 22.43 Supplemental rules governing the administrative assessment of civil penalties against a federal agency under the Safe Drinking Water Act.

(a) Scope. This section shall apply, in conjunction with §§22.1 through 22.32, in administrative proceedings to assess a civil penalty against a federal agency under section 1447(b) of the Safe Drink­ing Water Act, 42 U.S.C. 300j-6(b). Where inconsistencies exist between this section and §§ 22.1 through 22.32, this section shall apply.

(b) Effective date of final penalty order. Any penalty order issued pursuant to this section and section 1447(b) of the Safe Drinking Water Act shall become effective 30 days after it has been served on the parties.

(c) Public notice of final penalty order. Upon the issuance of a final penalty order under this section, the Adminis­trator shall provide public notice of the order by publication, and by providing notice to any person who requests such notice . The notice shall include:

(1) The docket number of the order; (2) The address and phone number of

the Regional Hearing Clerk from whom a copy of the order may be obtained;

(3) The location of the facility where violations were found ;

(4) A description of the violations: (5) The penalty that was assessed;

and . (6) A notice that any interested per­

son may, within 30 days of the date the order becomes final , obtain judicial re­view of the penalty order pursuant to section 1447(b) of the Safe Drinking Water Act, and instruction that per­sons seeking judicial review shall pro­vide copies of any appeal to the persons described in 40 CFR 135.ll(a).

§ 22.44 Supplemental rules of practice governing the termination of per­mits under section 402(a) of the Clean Water Act or under section 3008(a)(3) of the Resource Con­servation and Recovery Act.

(a) Scope of this subpart. The supple­mental rules of practice in this subpart

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shall also apply in conjunction with the Consolidated Rules of Practice in this part and with the administrative proceedings for the termination of per­mit s under section 402(a ) of the Clean Water Act or under section 3008(a){3) of the Resource Conservation and Recov­ery Act. Notwithstanding the Consoli­dated Rules of Practice, these supple­mental rules shall govern with respect to t he termination of such permits.

(b) In any proceeding to terminate a permit for cause under § 122.64 or § 270.43 of this chapter during the term of the permit:

(1) The complaint shall, in addition to the requirements of §22.14{b), con­tain any additional information speci­fied in § 124.8 of this chapter;

(2) The Director (as defined in § 124.2 of this chapter) shall provide public no­tice of the complaint in accordance with §124.10 of this chapter, and allow for public comment in accordance with § 124.11 of this chapter; and

(3) The Presiding Officer shall admit into evidence the contents of the Ad­ministrative Record described in § 124.9 of this chapter, and any public com­ments received.

[65 FR 30904, May 15, 2000]

§ 22.45 Supplemental rules governing public notice and comment in pro­ceedings under sections 309(g) and 3ll(b)(6)(B)(ii) of the Clean Water Act and section 1423(c) of the Safe Drinking Water Act.

{a ) Scope. This section shall apply, in conjunction with §§22.1 through 22.32, in administrative proceedings for the assessment of any civil penalty under sections 309{g) and 3ll(b)(6)(B)(ii) of the Clean Water Act (33 U.S .C. 1319(g) and 1321(b)(6)(B){ii)), and under section 1423(c ) of the Safe Drinking Water Act (42 U.S.C. 300h-2(c)) . Where inconsist­encies exist between this section and §§22.1 through 22.32, this section shall apply.

(b) Public notice-(1) General. Com­plainant shall notify the public before assessing a civil penalty. Such notice shall be provided within 30 days fol­lowing proof of service of the com­plaint on the respondent or, in the case of a proceeding proposed to be com­menced pursuant to § 22.13(b) , no less than 40 days before the issuance of an

§22.45

order assessing a civil penalty. The no­tice period begins upon first publica­tion of notice.

(2) Type and content of public notice. The complainant shall provide public notice of the complaint (or the pro­posed consent agreement if § 22.13(b) is applicable) by a method reasonably calculated to provide notice , and shall also provide notice directly to any per­son who requests such notice. The no­tice shall include:

(i) The docket number of the pro­ceeding;

(ii) The name and address of the com­plainant and respondent, and the per­son from whom information on the pro­ceeding may be obtained, and the ad­dress of the Regional Hearing Clerk to whom appropriate comments shall be directed;

(iii) The location of the site or facil­ity from which the violations are al­leged, and any applicable permit num­ber;

(iv) A description of the violation al­leged and the relief sought; and

(v) A notice that persons shall sub­mit comments to the Regional Hearing Clerk , and the deadline for such sub­missions.

(c ) Comment by a person who is not a party. The following provisions apply in regard to comment by a person not a party to a. proceeding:

(1) Participation in proceeding. (i) Any person wishing to participate in the proceedings must notify the Regional Hearing Clerk in writing within the public notice period under paragraph (b)(1) of this section. The person must provide his name, complete mailing ad­dress, and state that he wishes to par­ticipate in the proceeding.

(ii) The Presiding Officer shall pro­vide notice of any hearing on the mer­its to any person who has met the re­quirements of paragraph (c)(1)(i) of this section a t least 20 days prior to the scheduled hearing.

(iii ) A commenter may present writ­ten comments for the record at any time prior to the close of the record.

(iv) A commenter wishing to present evidence at a hearing on the merits shall notify, in writing, the Presiding Officer and the parties of its intent at least 10 days prior to the scheduled hearing. This notice must include a

263

§22.45

copy of any document to be introduced, a description of the evidence to be pre­sented, and the identity of any witness (and qualifications if an expert) , and the subject matter of the testimony.

(v) In any hearing on the merits, a commenter may present evidence, in­cluding direct testimony subject to cross examination by the par ties.

(vi) The Presiding Officer shall have the discretion to establish the extent of commenter participation in any other scheduled activity.

(2) Limitations. A commenter may not cross-examine any witness in any hear­ing and shall not be subject to or par­ticipate in any discovery or prehearing exchange.

(3) Quick resolution and settlement. No proceeding subject to the public notice and comment provisions of paragraphs (b) and (c) of this section may be re­solved or settled under § 22.18, or com­menced under §22.13(b), unt il 10 days after the close of the comment period provided in paragraph (c)(1) of this sec­tion.

(4) Petition to set aside a consent agree­ment and proposed final order. (i) Com­plainant shall provide. to each com­menter, by certified mail, return re­ceipt requested, but not to the Re­gional Hearing Clerk or Presiding Offi­cer, a copy of any consent agreement between the parties and the proposed final order.

(ii) Within 30 days of receipt of the consent agreement and proposed final order a commenter may petition the Regional Administrator (or, for cases commenced at EPA Headquarters, the Environmental Appeals Board), to set aside the consent agreement and pro­posed final order on the basis that ma­terial evidence was not considered. Copies of the petition shall be served on the parties, but shall not be sent to the Regional Hearing Clerk or the Pre­siding Officer.

(iii) Within 15 days of receipt of a pe­tition, the complainant may, with no­tice to the Regional Administrator or Environmental Appeals Board and to the commenter, withdraw the consent agreement and proposed final order to consider the matters raised in the peti­tion. If the complainant does not give notice of withdrawal within 15 days of receipt of the petition, the Regional

40 CFR Ch. I (7-1-14 Edition)

Administrator or Environmental Ap­peals Board shall assign a Petition Of­ficer to consider and rule on the peti­tion. The Petition Officer shall be an­other Presiding Officer, not otherwise involved in the case. Notice of this as­signment shall be sent to the parties, and to the Presiding Officer.

(iv) Within 30 days of assignment of the Petition Officer, the complainant shall present to the Petition Officer a copy of the complaint and a written re­sponse to the petition. A copy of the response shall be provided to the par­ties and to the commenter, but not to the Regional Hearing Clerk or Pre­siding Officer.

(v) The Petition Officer shall review the petition, and complainant's re­sponse, and shall file with the Regional Hearing Clerk, with copies to the par­ties, the commenter, and the Presiding Officer, written findings as to:

(A) The extent to which the petition states an issue relevant and material to the issuance of the proposed final order;

(B) Whether complainant adequately considered and responded to the peti­tion; and

(C) Whether a resolution of the pro­ceeding by the parties is appropriate without a hearing.

(vi) Upon a finding by the Petition Officer that a hearing is appropriate, the Presiding Officer shall order that the consent agreement and proposed final order be set aside and shall estab­lish a schedule for a hearing.

(vii ) Upon a finding by the Petition Officer that a resolution of the pro­ceeding without a hearing is appro­priate, the Petition Officer shall issue an order denying the petition and stat­ing reasons for the denial. The Petition Officer shall:

(A) File the order with the Regional Hearing Clerk;

(B) Serve copies of the order on the parties and the commenter; and

(C) Provide public notice of the order.

(viii) Upon a finding by the Petition Officer that a resolution of the pro­ceeding without a hearing is appro­priate. the Regional Administrator may issue the proposed final order. which shall become final 30 days after both the order denying the petition and

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a properly signed consent agreement are filed with the Regional Hearing Clerk , unless further petition for re­view is filed by a notice of appeal in the appropriate United States District Court, with coincident notice by cer­tified mail to t he Administrator and the Attorney General. Written notice of appeal also shall be filed with the Regional Hearing Clerk, and sent to the Presiding Officer and the parties.

(ix) If judicial review of the final order is denied, th e final order shall be­come effective 30 days after such denial has been filed with the Regional Hear­ing Clerk.

§§ 22.4&-22.49 [Reserved]

Subpart !-Administrative Pro-ceedings Not Governed by Section 554 of the Administra­tive Procedure Act

§ 22.50 Scope of this subpart.

(a) Scope. This subpart applies to all adj udicat ory pr oceedings for:

(1) The assessment of a penalty under sections 309(g)(2)(A) and 3ll(b)(6)(B)(i ) of the Clean Water Act (33 U.S .C. 1319(g)(2)(A) and 1321(b)(6)(B)(i )).

(2) The assessment of a penalty under sections 1414(g){3)(B) and 1423(c) of the Safe Drin king Water Act (42 U.S.C. 300g-3(g)(3)(B) and 300h-2{c)), except where a respondent in a proceeding under section 1414(g){3){B) requests in its answer a hearing on the record in accordance with section 554 of the Ad­ministrat ive Procedure Act, 5 U.S.C. 554.

(b) Relationship to other provisions. Sections 22.1 through 22.45 apply to proceedings under this subpart, except for the following provisions which do not apply: §§ 22 .11 , 22.16(c) , 22.21 (a), and 22.29. Where inconsistencies exist be­tween this subpart and subparts A t hrough G of t his par t, this subpart shall apply. Where inconsistencies exist between this subpart and subpart H of this part, subpart H shall apply.

§ 22.51 Presiding Officer.

The P residing Officer shall be a Re­gional Judicial Officer. The Presiding Officer shall conduct the hearing, and rule on all motions until an initial de-

pt, 23

cision has become final or has been ap­pealed.

§ 22.52 Information exchange and dis­covery.

Respondent's information exchange pursuant to §22.19(a) shall include in­formation on any economic benefit re­sulting from any activity or failure to act which is alleged in the administra­tive complaint to be a violation of ap­plicable law, including its gross r eve­nues, delayed or avoided costs. Dis­covery under §22.19(e) shall not be au­thorized, except for discovery of infor­mation concerning respondent 's eco­nomic benefit from alleged violation s and information concerning respond­ent's ability to pay a penalty.

PART 23-JUDICIAL REVIEW UNDER EPA-ADMINISTERED STATUTES

Sec. 23.1 Defini tions. 23.2 Timing of Adminis trator's ac tion under

Clean Water Act. 23.3 Timing of Administrator's a ction under

Clean Air Act. 23.4 Timing of Administrator's a ction under

Resource Conservation and Recovery Act .

23 .5 Timing of Administra tor's a ction under Toxic Substances Control Act.

23 .6 Timing of Administrator's act ion under Federal Insecticide . Fungicide and Rodenticide Act.

23.7 Timing of Administrator's action under · Safe Drinking Water Act.

23.8 Timing of Administrator's action under Uranium Mill Tailings Radiation Control Act of 1978.

23.9 Timing of Administrator's act ion under the Atomic Energy Act.

23.10 Timing of Administrator's action under the Federal Food, Drug, and Cos­metic Act.

23.11 Holidays. 23.12 Filing notice of judicial review.

AUTHORITY: Clean Water Act, 33 U.S .C. 1361(a ), 1369(b); Clean Air Act, 42 U.S .C. 7601(a )(1), 7607(b); Resource, Conservation and Recovery Act, 42 U .S .C. 6912(a), 6976; Toxic Subst ances Control Act, 15 U .S.C. 2618; Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136n(b), 136w(a); Safe Drinking Water Act, 42 U.S.C. 300i-7(a)(2) , 300i- 9(a ): Atomic Energy Act, 42 U .S .C. 2201, 2239; Federal Food, Drug, an d Cosmetic Act , 21 U .S .C. 37l(a ), 346a, 28 U.S .C. 2112(a ). 2343, 2344.

265

OFFICE OF ADMINISTRATIVE LAW JUDGES UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

WASHINGTON, D.C.

STANDING ORDER AUTHORIZING FILING AND SERVICE BY E-MAIL IN PROCEEDINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

The Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation!fennination or Suspension ofPennits, set forth at 40 C.P.R. Part 22 ("Consolidated Rules ofPractice"), state that "[t]he Presiding Officer . . . may by order authorize ... electronic filing, subject to any appropriate conditions and limitations," and "may by order authorize .. . electronic service, subject to any appropriate conditions and limitations." 40 C.F.R. § 22.5(a)(l), (b)(2). Pursuant to this authority, the Chief Administrative Law Judge hereby authorizes the filing and service of documents by e-mail, other than the complaint, rulings, orders, and decisions, in all cases currently before or subsequently transferred to the Office of Administrative Law Judges ("OALJ") that are governed by the Consolidated Rules of Practice1 and adopts the following conditions and limitations to facilitate filing and service bye­mail.2

1 The authority granted by this Order shall also apply to proceedings under those other provisions in Title 40 that expressly utilize 40 C.P.R. Part 22 procedures. See, e.g., 40 C.P.R. Part I 7 (applications for awards under the Equal Access to Justice Act that require filing and service consistent with Part 22); 40 C.F.R. § 66.91 (Clean Air Act enforcement appeals hearings governed by 40 C.F.R. Part 22 in conjunction with supplemental regulations at 40 C.F.R. Part 66). This Order s/ra/1 not apply to proceedings under other provisions in Title 40 that do not expressly incorporate the Part 22 procedures. See, e.g. , 40 C.F.R. Part 7 (nondiscrimination in programs or activities receiving federal assistance from the EPA); 40 C.F.R. Part 27 (administrative procedures for imposing civil penalties and assessments pursuant to the Program Fraud and Civil Remedies Act of 1986, 3 I U.S.C. §§ 3801-3812); 40 C.F.R. Part 78 (providing that the Environmental Appeals Board may refer an appeal under the Acid Rain program to the Chief Administrative Law Judge to conduct an evidentiary hearing to resolve disputed facts) ; 40 C.F.R. Part 85 (public hearings conducted under the mobile sources of air program); 40 C.F.R. Part I 64 (rules of practice governing several types of non-enforcement hearings under the Federal Insecticide, Fungicide, and Rodenticide Act); 40 C.F.R. Part 209 (rules governing proceedings under the Noise Control Act of I 972).

2 This Standing Order does not require the use of e-mail for filing or service in lieu ofother methods for filing and/or service. Rather, it authorizes the use of e-mail in addition to those methods already authorized and enumerated in the Consolidated Rules of Practice. 40 C.F.R. § 22.5(a)(l ), (b)(2). For documents filed through those non-electronic means, the inked date stamp physically applied by the Office of Administrative Law Judges to the paper copy of the documents will continue to serve as the otlicial record of the date and time of filing. The Office of Administrative Law Judges is open to receive such paper filings between 8:30a.m. and 4:30 p.m. Eastern Time, Monday through Friday. Any paper document received by the Office of

The conditions and limitations set forth herein may be amended or revoked generally or in regard to a specific case or group of cases by further order of the Chief Administrative Law Judge in her sole discretion at any time. In addition, the Administrative Law Judge presiding in a specific case may issue an order modifying these conditions and limitations if deemed appropriate in his or her discretion.

Filing of Documents bv E-Mail

The Consolidated Rules of Practice, as modified by the current Headquarters Hearing Clerk Pilot Program (see www.epa.gov\oalj), require that " [t)he original and one copy of each document intended to be part of the record shall be filed ·with the [Headquarters] Hearing Clerk when the proceeding is before" an Administrative Law Judge. 3 40 C.F.R. § 22.5(a); see Memorandum from John Reeder, Deputy Chief of Staff, AO, & Lawrence Starfield, Principal Deputy Assistant Admin., OECA, Pilot Program to Migrate Certain Regional Hearing Clerk Functions to the Headquarters Hearing Clerk (Apr. 27, 2012) (available at http://www.epa.gov/ oalj/orders!HrgClerk PilotProject Memo.pdf) (hereinafter cited as the "Starfield Memorandum"). A document is considered filed when the Headquarters Hearing Clerk receives it. 40 C.F.R. § 22.5(a)(l ). Documents must be signed, must be accompanied by a certificate of service, and may be submitted to the Headquarters Hearing Clerk for filing in person,' by mail, by courier, or by commercial delivery service. !d. Pursuant to this Order, documents may also be electronically submitted to the Headquarters Hearing Clerk for filing by e-mail, subject to the conditions and limitations set forth below.

Any party choosing to submit a document to the Headquarters Hearing Clerk by e-mail for filing must address the e-mail to OALJfiling@epa.gov.4 The subject line of the e-mail shall include the name and docket number of the proceeding. Documents submitted by e-mail must be in Portable Document Fonnat ("PDF"), and must contain a contact name, phone number, mailing address, and e-mail address of the ti ling party or its authorized representative. All documents submitted for filing, regardless of submission method, must be signed and must be accompanied by a certificate of service in accordance with Section 22.5 of the Consolidated Rules of Practice.

Administrative Law Judges after 4:30 p.m. Eastern Time may be treated as having been filed the next business day.

3 In an exception to this rule, any Consent Agreement and Final Order shall be filed with the Regional Hearing Clerk, not the Hea.dguarters Hearing Clerk. See Memorandum from Susan L. Biro, Chief Administrative Law Judge, OALJ, Amendment of Hearing Clerk Pilot Procedures as to CAFOS (Mar. 14, 2013) (available at http://www.epa.gov/oalj/orders /HrgClerk PilotProject Memo Amendment.pdf).

4 Electronic files exceeding 50 MB must be separated into files under 50 MB each or submitted on a compact disk ("'CD") by mail, courier, or personal delivery.

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To be considered timely, documents submitted by e-mail to OALJfiling@epa.gov for filing must be received by 11 :59 p.m. Eastern Time on the day the document is required to be filed. An e-mail and any attached documents shall be deemed to have been filed at the time and date of electronic reception as recorded by the Office of Administrative Law Judges ' e-mail system. Documents submitted by e-mail for filing shall be deemed to constitute both the original and one copy of the document, in satisfaction of the duplicate-filing requirement of Section 22.5(a)(l) ofthe Consolidated Rules. See 40 C.F.R. § 22.5(a)(l) (must file original and one copy of each document). Documents submitted by e-mail shall also be deemed served on the presiding Administrative Law Judge. See 40 C.F.R. § 22.5(b).

Please note that documents sent to the e-mail address of a staff member within the Office of Administrative Law Judges, or to any e-mail address other than OALJfiling@epa.gov, shall not be accepted for filing, and shall not be deemed served on the presiding Administrative Law Judge.

IMPORTANT INFORMATION REGARDING Confidential Business Information and Personally Identifiable Information

The Office of Administrative Law Judges is NOT equipped either to accommodate or to protect the privacy of Confidential Business Information ("CBI") or Personally Identifiable Information ("PII") contained in documents submitted to the Headquarters Hearing Clerk by e-mail for filing. Whenever a document is submitted by e-mail to OALJfiling@epa.gov for filing. the presiding Administrative Law Judge will consider all claims to confidentiality WAIVED. A party submitting information to the Office of Administrative Law Judges for which a claim of confidentiality is made must do so by filing paper copies of that information in the manner described in the Consolidated Rules of Practice, as modified by the Headquarters Hearing Clerk Pilot Project. See 40 C.F.R. § 22.5(d); the Starfield Memorandum; see also 40 C.F.R. Part 2. However, a redacted version of the document alleged to contain CBI or PII may be submitted by e-mail for filing so long as the party claiming confidentiality also files the unredacted version in accordance with the aforementioned requirements. See 40 C.F.R. § 22.5(d). For more information, please refer to the Office of Administrative Law Judges' Privacy Act Statement & Notice of Disclosure of Confidential and Personal Information (June 19, 2013) (available at http://www.epa.gov/oalj/orders/13-06-19 Privacv ActStatement NoticeOIDisclosure.pd{).

Service of Documents by E-Mail

The Consolidated Rules of Practice require that " [a] copy of each document filed in the proceeding shall be served on the Presiding Officer . . . and on each party." 40 C.F.R. § 22.5(b). Pursuant to this Order, filed documents other than the complaint, rulings, orders, and decisions may be served by e-mail, in addition to the other methods of service identified in Section 22.5(b)(2) of the Consolidated Rules of Practice, subject to the conditions and limitations set forth below.

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The subject line of the e-mail shall include the name and docket number of the proceeding. Documents sen ,ed by e-mail must be in Portable Document Format ("PDF"), and must contain a contact name, phone number, mailing address, and e-mail address of the serving party or its authorized representative. All documents, regardless of the method of service, must be signed and must be accompanied by a certificate of service in accordance with Section 22.5 of the Consolidated Rules of Practice. Service of documents by e-mail is complete upon electronic transmission. Documents submitted by e-mail to OALJfiling@,epa.gov for filing shall be deemed served on the presiding Administrative Law Judge.

SO ORDERED.

Dated: November 21 , 2013 Washington D.C.

Chief Administrative Law Judge

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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

IN THE MATTER OF:

Electronic Submission of Documents

) ) ) ) )

EPA Docket No. 01-2015-0001

. STANDING ORDER AUTHORIZING FILING AND SERVICE BY E-MAIL IN PROCEEDINGS BEFORE THE REGION 1 REGIONAL JUDICIAL OFFICER

The Consolidated Rules of Practice Governing the Administrative Assessment of Civil Penalties and the Revocation/Termination or Suspension of Permits, set forth at 40 C.F.R Part 22 ("Consolidated Rules of Practice"), state that "[t]he Presiding Officer. .. may by order authorize ... electronic filing, subject to any appropriate conditions and limitations." 40 C.F.R. §22.5(a)(l), (b )(2). Note, however, that rulings, orders and decisions must be filed and served in accordance with 40 C.F.R. § 22.6, and complaints must be served in accordance with 40 C.P.R.§ 22.5(b)(l). Accordingly, pursuant to this authority, the filing and service of documents, other than the complaint, rulings, orders, and decisions, in all cases currently before or subsequently filed with the Region 1 Regional Judicial Officer governed by the Consolidated Rules of Practice may be filed and served by e-mail.1 See 40 C.F.R. §§ 22.5(a), (b)(l), (b)(2) & 22.6.

Note that this Standing Order does not require the use of e-mail for filing or service in lieu of other methods for filing and/or service. Rather, it authorizes the use of e-mail in addition to those methods already authorized in the Consolidated Rules of Practice. 40 C.F.R. § 22.5(bX2).

In addition, the following conditions and limitations to facilitate filing and service by email are hereby adopted.

• A document is considered filed when the Regional Hearing Clerk receives it 40 C.F .R. § 22.5(a)(l). All filed documents must be signed, accompanied by a certificate of service, and submitted to the Regional Hearing Clerk for filing in person, or by mail, courier, commercial delivery service, or email.

• Documents filed with the Regional Hearing Clerk by email after 11:59 p.m. Eastern Time will be treated as having been filed the next business day.

• For documents filed through non-electronic means, the inked date stamp physi~ly applied by the Regional Hearing Clerk to the paper copy of the documents will continue

1 This Order shall not apply to proceedings under other provisions in Title 40 that do not expressly incorporate the Part 22 procedures.

to serve as the official record of the date and time of filing. The Regional Hearing Clerk is open to receive such paper filings between 8:00 a.m. and 5:00p.m. Eastern Time, Monday through Friday.

• Any party choosing to submit a document to the Regional Hearing Clerk by e-mail for filing must address the e-mail to Rl Hearing Clerk Filin2:s@epa.gov (note: there are "_"underscore characters ben.veen each word). The subject line of the electronic transmission shall include the name and docket number of the proceeding. Documents submitted electronically must be in Portable Docl.lment Format ("PDF"), and contain a contact name, phone number, mailing address, and e-mail address of the filing party or its authorized representative. All documents submitted for filing, regardless of submission method, must be signed and accompanied by a certificate of service in accordance with 40 C.F.R. § 22.5(a)(3).

• Documents submitted by email for filing shall be deemed to constitute both the original and one copy of the document in satisfaction of the duplicate-filing requirement at 40 C.F.R. § 22.5(a)(l).

• This authorization terminates as to any particular proceeding when an answer is filed pursuant to 40 C.F.R. § 22.15. In addition, this authorization does not apply in proceedings under 40 C.F .R. § 22.13(b ), or to consent agreements and final orders filed with the Regional Hearing Clerk pursuant to 40 C.F.R. § 22.18(b) and Memorandum from Susan L. Biro, Chief Administrative Law Judge, OALJ, Amendment of Hearing Clerk Pilot Procedures as to CAFOS (March 14, 2013) (available at http://www.epa.gov/oalj/orders/HrgClerk PilotProiect Memo Amend ent.pdf).

• Documents filed after an answer is filed must comply with the Chief Administrative Law Judge's Standing Order Authorizing Filing and Service By E-Mail in Proceedings Before the Office of Administrative Law Judges (November 21, 2013) (available at http://\"oww.epagov/oalj/orders/20 13/Standin!Z Order 2013-11 -21 E-Mail Filin!Z & Service Si2:ned.pdf) and the Chief Administrative Law Judge' s Standing Order Authorizing Electronic Filing in Proceedings Before the Office of Administrative Law Judges (August 11, 2014) (available at h p://www.epa.gov/oalj/orders/2014/2014-08-1 1 %20-%20E-Filing Standing 0 der Final. pdf).

• This authorization applies only in proceedings in which the complaint clearly provides notice of the availability of electronic filing and service, and in which the complaint is accompanied by a copy of this notice and order. Prior to utilizing electronic service, the parties shall confer and reach agreement regarding acceptable electronic addresses and other logistical issues.

• The conditions and limitations set forth herein may be amended or revoked generally or in regard to a specific case or group of cases by further order of the Regional Judicial Officer in her sole discretion at any time. In addition, the Regional Judicial Officer may issue an order modifying these conditions and limitations if deemed appropriate in her discretion.

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SO ORDERED.

r-·,

Dated: October 9, 2014 LeAnn Jensen (._) Acting Regional Judicial Officer

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In the Matter of Electronic Submission of Documents Docket No. 01-2015-0001

CERTIFICATE OF SERVICE

I certify that on this 9th day of October, 2014 the original foregoing Order was filed with the Regional Hearing Clerk, a copy was hand-delivered to Karen McGuire and Joanna Jerison.

Karen McGuire Chief, Regulatory Legal Unit U.S. EPA Region I 5 Post Office Square Mail Code OES 4-3 Boston, MA 021 09-3 912

Johanna Jerison Branch Chief, Legal Enforcement Office U.S. EPA Region I 5 Post Office Square Mail Code OES 4-2 Boston, MA 02109-3912

Wanda I. Santiago Regional Hearing Clerk U.S. EPA Region I 5 Post Office Square, Suite 100 Mail code ORA 18-1 Boston, MA 021 09-3 912

' .

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

In the matter of

BORREGO SOLAR SYSTEMS, INC.

Respondent.

Proposing to Assess a Civil Penalty Under Section 309(g) of the Clean Water Act, 33 U.S.C. § 1319(g)

) ) ) ) ) ) ) ) ) ) )

Docket No. CWA-01-2015-0047

COMPLAINT AND NOTICE OF OPPORTUNITY FOR HEARING

_________________________________ )

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Administrative Complaint and Notice of Opportunity to Request a Hearing has been sent to the following persons on the date noted below:

Original and one copy, hand-delivered:

Copy, by Certified Mail, Return Receipt Requested, with copy of 40 C.P.R. Part 22:

Copy, by Certified Mail, Return Receipt Requested:

Ms. Wanda Santiago Regional Hearing Clerk U.S . EPA, Region I (ORA18-1) 5 Post Office Square, Suite 100 Boston, MA 021 09-3 912

Aaron Hall, President, Borrego Solar Systems, Inc. , 5005 Texas St. , Suite 400, San Diego, CA 921 08

Robert McCallum Massachusetts Department of Environmental Protection, Western Region 436 Dwight Street Springfield, MA 01103

' .

Dated:

U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 (OES04-2) Boston, MA 021 09-3 912 Tel (617) 918- 1733 Adarns.Margery@epa.gov

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 1

In the matter of

BORREGO SOLAR SYSTEMS, INC.

Respondent.

Proposing to Assess a Civil Penalty Under Section 309(g) ofthe Clean Water Act, 33 U.S.C. § 1319(g)

) ) ) ) ) ) ) ) ) ) )

Docket No. CWA-01-2015-0047

COMPLAINT AND NOTICE OF OPPORTUNITY FOR HEARING

_______________________________)

CERTIFICATE OF SERVICE

I hereby certify that the foregoing Administrative Complaint and Notice of Opportunity to Request a Hearing has been sent to the following persons on the date noted below:

Original and one copy, hand-delivered:

Copy, by Certified Mail, Return Receipt Requested, with copy of 40 C.P.R. Part 22:

Copy, by Certified Mail, Return Receipt Requested:

Ms. Wanda Santiago Regional Hearing Clerk U.S. EPA, Region I (ORA18-1) 5 Post Office Square, Suite 100 Boston, MA 021 09-3 912

Aaron Hall, President, Borrego Solar Systems, Inc. , 5005 Texas St. , Suite 400, San Diego, CA 921 08

Robert McCallum Massachusetts Department of Environmental Protection. Western Region 436 Dwight Street Springfield, MA 01103

U.S. Environmental Protection Agency, Region 1 5 Post Office Square, Suite 100 (OES04-2) Boston, MA 021 09-3 912 Tel (617) 918-1733 Adams.Margery@epa.gov

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION I

MAY { 2 2015

Robert McCallum

5 POST OFFICE SQUARE, SUITE 100

BOSTON, MA 02109-3912

Massachusetts Department of Environmental Protection Western Region 436 Dwight St. Springfield, MA 01103

Re: In the Matter of Borrego Solar Systems, Inc. Docket No. CWA 01-2015-0047

Dear Mr. McCallum:

As discussed previously between our respective staffs, please find a copy of the Administrative Complaint and Notice of Proposed Penalty Assessment which the Environmental Protection Agency (EPA), Region I, has issued to Borrego Solar Systems, Inc., pursuant to Section 309(g) ofthe Clean Water Act ("CWA"), 33 U.S.C. § 1319(g).

EPA is proposing a penalty up to the statutory maximum ($187 ,500) for violations of Section 301 of the CWA at three solar array sites known as Midstate Solar 1, 2 and 3, in Warren, Massachusetts. Specifically, the complaint alleges Borrego Solar Systems, Inc., as the operator and entity directing construction at the Sites in 2013-2014, violated numerous conditions of the 2012 NPDES General Permit for Stormwater Discharges from Construction Activities, resulting in the discharge of sediment and turbid water into Tufts Brook, Taylor Brook and adjacent wetlands.

If you have any comments or questions regarding this matter, please call Margery Adams of my legal staffat (617) 918-1733.

Sincerely,

Susan Studlien, Director Office of Environmental Stewardship

Enclosure

cc: Margery Adams, EPA RECEIVED

MAY l 2 2015 EPAORC W~

Office of Regional Hearing Clerk